Abortion to remain legal in Kentucky as judge rules against enforcing bans

Legal abortions can continue in Kentucky under a judge’s decision Friday blocking enforcement of two state laws that would ban abortions in most cases.

In a ruling that read at times like a repudiation of the U.S. Supreme Court’s recent decision striking down a federal right to abortion under the longstanding Roe vs. Wade case, Jefferson Circuit Judge Mitch Perry said there are significant questions on whether Kentucky’s anti-abortions laws are constitutional.

Perry issued an injunction that will allow abortions to continue until a lawsuit is resolved in court.

That could take months, though Attorney General Daniel Cameron said he would appeal the ruling, which could affect the status.

Perry recognized the state’s argument that it has an interest in protecting what the law calls “unborn human beings,” but said women have a greater right to self-determination.

“The fundamental right for a woman to control her own body free from governmental interference outweighs a state interest in potential fetal life before viability,” Perry wrote.

Whether to have a child, Perry said, “is a decision that has perhaps the greatest impact on a person’s life and as such is best left to the individual to make, free from unnecessary governmental interference.”

Perry issued an injunction to prevent state officials from enforcing two laws intended to criminalize most abortions.

One is called the trigger law, which would make it a crime to perform an abortion except in very limited situations in which a woman faces a risk of death or serious impairment from a pregnancy.

The Kentucky legislature, dominated by Republicans, passed the law in 2019 to take effect if the U.S. Supreme Court ever struck down Roe vs. Wade.

That happened June 24, ending nearly 50 years of legal abortion in the U.S. to the delight of evangelical Christians and others who had fought for decades to overturn the law.

The other law at issue is the fetal heartbeat law. It bans abortions after a fetal heartbeat can be detected, which is usually when a woman is about six weeks pregnant.

Cameron argued to enforce the bans in the wake of the U.S. Supreme Court decision, but two abortion providers sued to try to maintain access to abortion in Kentucky.

They are EMW Women’s Surgical Center, represented by the American Civil Liberties Union of Kentucky, and Planned Parenthood Great Northwest, Hawai’i, Indiana, Kentucky.

Both provide procedural abortions in Louisville.

Perry issued a temporary restraining order June 30 to block the laws and then took testimony on whether to issue an injunction.

In the order Friday, Perry said there is a substantial likelihood that the trigger ban and the heartbeat law violate the Kentucky Constitution.

The trigger law arguably improperly delegated the legislature’s authority to another body, the U.S. Supreme Court, and could be considered unconstitutionally vague over questions of when to begin enforcement, Perry said.

As for the heartbeat law, referred to in the decision as the six week ban, Perry found a likelihood that it violates state constitutional rights to privacy, self-determination, equal protection for women and religious freedom.

The law would create obligations for woman and expose them to potential restrictions and penalties that would not apply to men, Perry said.

Perry said pregnancy is the only context in which a woman’s bodily autonomy is taken from her, noting that people can’t be legally required to give blood, take part in a bone-marrow transplant or even donate organs after death without consent.

“This is a burden that falls directly, and only, on females. It is inescapable, therefore, that these laws discriminate on the basis of sex,” Perry wrote.

Perry also noted Kentucky’s Constitution has been described as providing a greater right to privacy than that of the U.S., and the state has a long history of limiting governmental intrusion and overreach.

“The Six Week Ban flies directly in the face of that tradition,” he said.

As for religious freedom, Perry said Christians and Catholics believe that life begins at conception — the idea of “independent fetal personhood” — but other faiths have different views.

That means the state laws aimed at limiting abortion impermissibly “endorse the doctrine of a favored faith for preferred treatment,” Perry said.

Perry said history may undermine the argument that the state historically has been anti-abortion. Abortion with the consent of the mother before “quickening” — when a pregnant woman can start to feel a baby move — was legal in Kentucky in the 1800s, the judge said.

Abortion providers applauded the decision.

“Once again, the courts have rightly stopped Attorney General Daniel Cameron’s relentless efforts to ban abortion, which would have devastating consequences for Kentuckians,” the providers said in a statement. “No one should be forced to carry a pregnancy against their will or flee the state to access essential health care.”

Cameron said the decision was disappointing.

“The judge’s suggestion that Kentucky’s Constitution contains a right to abortion is not grounded in the text and history of our state’s governing document,” Cameron said in a statement. “We will continue our steadfast defense of these bipartisan laws that represent the Commonwealth’s commitment to the lives of the unborn.”

The Family Foundation decried the decision as judicial activism.

“Judge Perry’s appalling action to issue a temporary injunction against enforcement of Kentucky’s Human Life Protection Act is egregiously wrong and unjustifiable. Perry continues to blatantly disregard the Commonwealth’s pro-life laws, history, and the U.S. Supreme Court,” the executive director, David Walls, said in a statement. “The Kentucky Supreme Court must end this injunction immediately to ensure that the abortion industry stops killing children in the womb in violation of the law.”

Kentucky voters will decide this fall whether to approve an amendment declaring that the state Constitution does not include a right to abortion.