Abortion rights advocates file state lawsuit in bid to restore access in Kentucky

Deborah Yetter
Louisville Courier Journal

LOUISVILLE, Ky. — Three days after the U.S. Supreme Court struck down the federal right to abortion, abortion-rights advocates filed a lawsuit in Kentucky seeking to restore the right under the state constitution.

Abortion access in Kentucky ended abruptly Friday under a state "trigger" law that required an immediate end to abortion upon the Supreme Court reversing its 1973 landmark Roe v. Wade decision establishing the procedure as a constitutional right.

Jefferson Circuit Judge Mitch Perry has scheduled a hearing at noon Wednesday on the request for a  temporary restraining order by Kentucky's only two abortion providers, EMW Women's Surgical Center and Planned Parenthood.

The lawsuit, filed Monday in Jefferson Circuit Court, asks Perry to block enforcement of the 2019 trigger law (House Bill 148) because it conflicts with rights conferred by the state constitution for patients seeking to end pregnancies.

"Abortion is safe, common and essential health care," the lawsuit said.

It also asks the judge to halt a 2019 ban on abortions after six weeks of pregnancy which a federal judge had blocked but which could be reinstated following Friday's Supreme Court decision.

And it asks for an emergency order to block enforcement of the laws as well as a declaration that the laws are unconstitutional and should be blocked permanently.

The lawsuit argues Kentucky's constitution protects abortion through the right to privacy and bodily autonomy.

"The Supreme Court's decision to take away a right we have relied on for 50 years has caused devastation in Kentucky and across the country," said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, which represents EMW.

Kentucky Attorney General Daniel Cameron, an anti-abortion Republican who has vowed to defend Kentucky's abortion laws, in a statement called the claims of state constitutional protections "baseless."

“To be clear, there is no right to abortion contained in the commonwealth’s constitution — and we will stand up against any baseless claim to the contrary," he said.

"I have always stood strong in defense of life, and I will continue to advocate for our laws, which protect pregnant women and unborn babies."

Cameron said the Supreme Court decision "definitively stated that each state is the authority on protecting unborn life" and that the trigger law "made it clear that most abortions are now illegal.”

The lawsuit says it is "unclear" as to whether the trigger law is in effect, pending a certified copy of the Supreme Court decision expected July 19 but added "Cameron has made public statements indicating he believes the trigger ban is in effect."

In an advisory issued Friday Cameron said the trigger law "became effective on June 24, 2022, the date on which the Supreme Court issued its decision."

The lawsuit argues that bans on abortions are especially harmful to low-income and Black people "as they are among the least able to readily access medical care and the most vulnerable to dying from pregnancy-related causes."

It adds that Kentucky has one of the highest pregnancy-related death rates in the nation and "pregnancy is more than twice as deadly for Black Kentuckians as it is for white Kentuckians."

Kentucky's trigger law bans all abortions except to save the life of the pregnant person or to prevent disabling injury.

It contains no exceptions for victims of rape or incest. Nor does it permit abortion in cases where a fetus is severely malformed and unlikely to survive.

The six-week ban bars abortions after cardiac signals can be detected from an embryo, usually around six weeks — often before people realize they are pregnant.

Health providers who perform abortions in violation of the trigger law or six-week ban may be prosecuted for a class D felony, punishable by up to five years in prison.

Seeking to preserve abortion rights, advocates are pursuing a similar litigation strategy in several states, including Louisiana where a state judge on Monday blocked enforcement of that state's trigger law. Also on Monday, a Utah judge allowed abortions to resume temporarily, after Planned Parenthood filed suit.

Louisiana's  law is suspended until a hearing on July 8. All three of Louisiana's abortion clinics in Shreveport, Baton Rouge and New Orleans closed Friday after the Supreme Court ruling was issued. 

Abortion rights advocates also plan a challenge in Ohio, where a six-week ban on abortion was reinstated after Friday's Supreme Court ruling. Planned Parenthood and the ACLU said Friday they planned to sue, arguing the Ohio constitution provides the right to abortion.

In Kentucky, any success at prevailing on the claim could hang on the outcome of a proposed constitutional amendment.

A ballot initiative in the Nov. 8 general election, if approved by voters, would add an amendment to the state constitution declaring there is no constitutional right to abortion in Kentucky.

 Abortion opponents are working hard to ensure the measure passes, saying if it is approved, it will derail efforts to establish abortion as a state right.

Advocates for abortion rights have mounted a campaign asking voters to reject the constitutional amendment that 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.

Reach Deborah Yetter at Find her on Twitter at @d_yetter. Support strong local journalism by subscribing today: