Kentucky high court upholds state abortion bans while case continues

The Kentucky Supreme Court has ruled that the state's near-total bans on abortion will remain in place while a lawsuit over the matter continues. The bans include a six-week ban and a trigger law, which have been in place since August of last year.

The decision has been closely watched as it comes just months after voters weighed in on the issue of abortion rights and signaled support for abortion rights at the ballot box.

"Lives will be saved while these laws remain in effect, and we hope and pray the lower courts will respect Kentuckians' will and base their decisions in this case on the Constitution and rule of law," Sue Liebel, midwest regional director of the Susan B. Anthony List, a national anti-abortion-rights group, said after Thursday's decision.

Abortion-rights groups decried the ruling.

"This unconscionable decision is a slap in the face to Kentucky voters, who only three months ago rejected a constitutional amendment that would have allowed a permanent ban on abortion in their state," said NARAL President Mini Timmaraju.

The two state laws – a ban on nearly all abortions in Kentucky and a ban on most abortions after about six weeks of pregnancy – were allowed to take effect last year following the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision.

Both laws were passed in 2019, as part of a years-long effort by mostly Republican lawmakers in multiple states to restrict the procedure as much as possible. They put in place layers of restrictions that could take effect in the event that Roe v. Wade was either partially or, as in Dobbs, fully overturned.

Kentucky's two remaining clinics, Planned Parenthood and EMW Women's Surgical Center, were forced to stop providing abortions in early August. The American Civil Liberties Union challenged both bans, prompting a chain of litigation that culminated with arguments before the Kentucky Supreme Court in November.

The oral arguments took place just days after voters rejected Amendment 2, which would have amended the state constitution to state explicitly that there is no right to an abortion.

Kentucky was among several states where residents voted to support abortion rights last year following the Dobbs decision.

Kentucky Attorney General Daniel Cameron, a Republican, defended the two bans during oral arguments, saying the state legislature — not the courts — has the right to regulate abortion. The ACLU argued that the laws violate multiple rights guaranteed by Kentucky's state constitution, among them the "right of seeking and pursuing their safety and happiness" and freedom from "absolute and arbitrary power."

As Kentucky Public Radio has reported, the state's seven-person high court now has a new chief justice and two new members, adding to the uncertainty around how the newly constituted court might rule.

After the Dobbs decision, abortion rights groups in several states with pre-existing abortion bans known as "trigger laws" filed lawsuits challenging them in state court. In Louisiana, for example, reproductive rights lawyers persuaded a judge to block abortion restrictions, winning clinics in the state a temporary reprieve before a state judge ultimately allowed them take effect, prohibiting nearly all abortions.

About a dozen states have banned most or all abortions, according to data kept by the Center for Reproductive Rights; laws in several other states including Ohio and Indiana are tied up in ongoing litigation.