Advocates have a plan to restart abortions in Kentucky. Opponents have a plan to stop it

LOUISVILLE, Ky. — As opponents celebrate the end of abortion in Kentucky under Friday's U.S. Supreme Court ruling, advocates for reproductive rights are plotting a way to restore women's access.

They plan to file a lawsuit in state court as early as Monday arguing that Kentucky's constitution allows the right to abortion — even though the Supreme Court struck it down as a federal constitutional right.

"It creates a legal pathway," said Tamarra Wieder, Kentucky state director for Planned Parenthood Alliance Advocates. "It's our only way to fight back against these extremist attacks on our liberties."

The American Civil Liberties Union of Kentucky and Planned Parenthood both said Friday they intend to file such a lawsuit.

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"The ACLU of Kentucky is bringing everything it has to the fight for abortion access following this devastating ruling," said Amber Duke, interim director.

However, a Kentucky ballot initiative in the Nov. 8 general election could cut off that pathway, raising the stakes for both sides in the battle over abortion rights.

 Abortion opponents are working hard to ensure a measure passes establishing that no state constitutional right to abortion exists.

They say that if voters approve the measure as an amendment to the Kentucky Constitution, it will derail efforts to establish abortion as a state right.

"This pro-life constitutional amendment is critical to guaranteeing that we don't fall victim to another tragedy of judicial activism like Roe here in Kentucky," said Addia Wuchner, executive director of Kentucky Right to Life.

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"To ensure that today's celebration isn't undercut by a judge who doesn't speak for Kentucky, we need everyone to vote yes." 

Roe v. Wade was the 1973 landmark Supreme Court decision establishing a constitutional right to abortion. The current Supreme Court struck down Roe Friday in a ruling that called the Roe decision "egregiously wrong from the start."

Because Kentucky previously passed a "trigger law" calling for an immediate end to nearly all abortion in the event Roe was revoked, access ended Friday morning after the ruling was released.

As a result, the state's two abortion providers, Planned Parenthood and EMW Women's Surgical Center, have suspended those services.

The ruling prompted mass demonstrations in Louisville Friday night and again Saturday, with abortion-rights advocates rallying in front of the federal courthouse and Metro Hall.

"I was so angry about the ruling that I needed to be in community, with others who feel the same as me," Malea Young said Friday night. "… I wasn’t surprised it was coming. I was surprised by how angry I felt that I lost a tangible right in a second."

Abortion opponents also were out in force, with an event Saturday to celebrate the downfall of the ruling they had fought so long to overturn.

"We're just very happy it's going back to the states and it's illegal here in Kentucky," Peggy Boone said Saturday at an event held outside St. Louis Bertrand Catholic Church. "We're been working on this for 50 years."

Meanwhile, abortion-rights groups have already been working on ways to help Kentuckians who are seeking to terminate pregnancies.

"Planned Parenthood has been preparing for this for a while," Wieder told The Courier Journal earlier this month.

"We will be helping patients navigate out of the state."

Precedent may work in favor of abortion rights advocates

Samuel Marcosson, a professor at the University of Louisville Brandeis School of Law, said a lawsuit seeking to establish abortion as a state constitutional right in Kentucky has precedent in its favor.

"There is a history of the Kentucky Supreme Court recognizing rights under the state constitution that the U.S. Supreme court under the federal constitution had rejected," Marcosson said.

"It is certainly not unheard of. It happens in other states all the time."

Likely the best precedent in Kentucky, Marcosson said, was in 1992 when the state Supreme Court struck down the state's anti-sodomy law. The U.S. Supreme Court previously had declined to do so in another case.

The U.S. court eventually reversed its decision but not before Kentucky's high court "blazed its own trail," Marcosson said.

Kentucky's ruling came in a Lexington case where a  man was arrested after agreeing to engage in consensual sex with a male undercover detective in a police sting operation.

The state Supreme Court struck down the anti-sodomy law. In an opinion by the late Justice Charles Leibson, the court found the law violated the right to privacy and equal protection granted by the Kentucky constitution.

Marcosson said the case is a "key precedent." 

"It deals specifically with the right to privacy," he said.

Constitutional amendment would stop abortion rights effort in its tracks

However, Constitutional Amendment 2, which Kentucky voters will be asked to decide in November, could end the possibility of declaring abortion as a state right.

It reads:

"To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Kentucky's Republican-controlled legislature, which has passed multiple laws to ban or restrict abortion in recent years, voted to place the measure on this year's November ballot.

"If that passes, that pathway would be cut off," Marcosson said.

As a result, both sides are increasing efforts around the amendment as the general election nears.

Abortion opponents are seeking support for the constitutional amendment through a "Yes for Life" Campaign. Its members include Right to Life, the Catholic Conference of Kentucky, the Kentucky Baptist Convention, Sisters for life and the Family Foundation of Kentucky.

Wuchner said Friday her organization will work tirelessly to generate support for the constitutional amendment. Its passage ensures "no judge will put his own politics above the will of the people and invent a right to abortion," she said.

The Catholic Conference is calling on "all citizens" to vote for the amendment.

"This proposed constitutional amendment is very simple and will prevent our state courts from ever issuing a decision like Roe v. Wade," it said in a joint statement from Kentucky's Catholic bishops.

But Planned Parenthood and other groups, through the Protect Kentucky Access campaign, are working to defeat the constitutional amendment.

Members include the ACLU, Kentucky Health Justice Network, the Fairness Campaign, the Kentucky Religious Coalition for Reproductive Freedom, the Black Birth Workers Alliance and others.

Wieder said she believes opposition to the constitutional amendment will grow as people realize access to abortion — and potentially other rights in the future — are at stake.

"We are going to win," she said. "We want everyone to know what's on the line. They won't stop here."

Reach Deborah Yetter at dyetter@courier-journal.com. Find her on Twitter at @d_yetter. Support strong local journalism by subscribing today: www.courier-journal.com/subscribe.