Amendment 2 is a legal quagmire, and the end of reproductive freedom for Kentuckians

Every Kentuckian deserves to decide whether and when to start or expand a family.

More than six in ten Kentuckians oppose an abortion ban with no exceptions for rape or incest, the ban currently in place in Kentucky. Amendment 2 would change Section 26A of the Kentucky constitution to state that “nothing in this constitution shall be construed to secure or provide a right to abortion.” This would have the effect of enshrining the complete ban on abortion with no exceptions for rape or incest not just into law (KRS 311.772), but into Kentucky’s Constitution.

This kind of ban is as extreme as it is unpopular. Only 14% of Kentuckians support a ban on abortion with no exceptions. Meanwhile, 62% of Kentuckians oppose an abortion ban with no exceptions for rape or incest, the current ban in effect in the Commonwealth. As with the U.S. Supreme Court’s decision overturning Roe v. Wade, we can’t contemplate all the effects Amendment 2 would have, but we know its immediate effects would be devastating.

Banning abortion does nothing to make pregnancy safer. The United States is the one of the most dangerous places in the developed world to be pregnant and a higher percentage of pregnant people die in Kentucky than in most other states. Restricting access to abortion care will only make pregnancy and childbirth more dangerous, particularly for Black and Brown patients who experience greater rates of maternal morbidity and mortality than white patients. Amendment 2 would validate interpretations of existing and future laws that curtail the ability of physicians to make time-sensitive decisions about patient care in obstetric and gynecologic emergencies, such as ectopic pregnancies, previable rupture of membranes, and septic or incomplete miscarriages, as well as to treat patients whose conditions require medications or procedures that could harm a fetus or terminate a pregnancy.

For example, a patient presenting in obstetrics triage or the emergency department at 17-weeks gestation with spontaneous rupture of membranes (which non-doctors usually call broken water) is at risk for infection and hemorrhage without appropriate management. Management in this case could constitute an illegal abortion per existing Kentucky law if the fetus has a heartbeat. While a wait-and-see approach may be appropriate for a patient with the same condition a few weeks further into pregnancy, it is not readily possible with the best technology for this pregnancy to reach periviability, when it could result in a live birth, albeit with the risk of significant birth defects.

This is a clearly dangerous condition for the patient, but it is not patently clear at what point a physician may “perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman,” as required by KRS 311.772. Must a physician wait for the patient to hemorrhage or become septic with a life-threatening infection to terminate a pregnancy that cannot possibly result in a live birth? What constitutes “serious, permanent impairment” when long-term outcomes are not certain? What constitutes a “life-sustaining organ?” Do patients need to be in the ICU, on ventilators and medications to maintain organ perfusion before their physicians may act?

In the absence of more explicit guidance, doctors are erring on the side of legal caution in similar situations. A pregnant woman in Texas with previable rupture of membranes at 18-weeks gestation was told to return to the hospital when she spiked a fever. Her abortion was only approved by the hospital ethics board after she began experiencing signs of infection. There are reports from Tennessee that some patients presenting with ectopic pregnancies reportedly wait hours at the hospital so that doctors can confirm with lawyers that they can provide life-saving treatment. Yet, an ectopic pregnancy cannot result in a live birth. One woman was forced by Louisiana state law to continue a non-viable pregnancy; her fetus had acrania, a condition in which a fetus does not develop a skull, but she was not eligible for an abortion under the Louisiana statute because the condition does not carry an imminent risk of maternal death (she has since had an abortion by traveling out of state).

But we don’t have to look out of state to see the ramifications of abortion bans. Only Tuesday, the Herald-Leader published this op-ed from a Kentucky woman who was denied an abortion. Her fetus was diagnosed with Triploidy, a fatal chromosomal abnormality, and she was diagnosed with a partial molar pregnancy, which is a form of cancer. In both cases, abortion is medically-indicated. She was able to have an abortion in the brief period in June in which Kentucky’s abortion ban was blocked.

Kentucky’s current abortion ban requires doctors to weigh medical care against the possibility of being prosecuted and facing jail time for following the standard of care. KRS 311.772 makes performing an abortion a Class D felony punishable by up to five years incarceration and a fine up to $10,000. Presumably, a felony conviction would carry consequences for medical licensure. When determining how to manage obstetric and gynecologic emergencies, the patient’s health should be the only consideration for a physician, not whether the patient is close enough to death to perform a medically-indicated abortion.

Kentucky legislators’ attempt to ban abortion in Kentucky does nothing to address the number one reason pregnant people seek abortion care: poverty. Everyone knows that having a baby is expensive, but many pregnant Kentuckians who decide to have an abortion do so because they cannot afford to bear the costs and risks associated with being pregnant. For Kentuckians experiencing poverty, lawmakers’ attempt to ban access to legal abortions will only deepen that poverty, probably for generations. The Turnaway Study, a long-term study on the effects of having or being denied an abortion, showed that denying an abortion to someone who wanted one creates economic hardship and insecurity that lasts years. It affects the wellbeing and development of their children and leads to women staying in homes with intimate partner violence.

Financial concerns should never prevent someone from carrying an otherwise wanted pregnancy to term. One in seven Kentuckians is food insecure. Food insecurity rates were just returning to pre-2008 recession levels prior to the COVID-19 pandemic. Now, the surging cost of living means that Kentuckians are trying to feed their families on less. Instead of banning legal abortion, the General Assembly should focus on protecting and expanding policies and programs that ensure all Kentuckians can raise healthy, happy families (Medicaid, SNAP, WIC, KTAP, universal contraception access, just cause eviction protections, etc.).

However, even if we could wave a magic wand and ensure that every pregnancy is safe for every patient and that every Kentuckian has the food, healthcare, shelter, and money they need for their family to survive and thrive, abortion is health care. We cannot have reproductive justice and health justice without it.

We know abortion is a difficult, often nuanced issue for many people. We each come to this issue with our own notions of when it is appropriate to terminate a pregnancy, and many believe that abortion should be illegal in at least some circumstances. The reasons for seeking an abortion vary significantly from person to person and pregnancy to pregnancy, and it is impossible to create a one-size-fits-all policy that captures the complexity of this issue. The current abortion ban in Kentucky is a one-size-hurts-many approach. Instead, each patient is best suited to decide whether to continue or terminate a pregnancy based on the patient’s own family and financial situation, as well as their own health concerns and personal values. It is not the role of government to make those determinations.

You can support a Kentucky in which we each extend grace to one another to make hard, deeply individual decisions well by voting NO on Amendment 2 on Nov. 8. Protect Kentucky Access, the coalition working together to defeat Amendment 2 on the ballot, has volunteer events every day through Tuesday. Please sign up to volunteer with Protect Kentucky Access here.

Chloe Atwater is the Health Justice Attorney at Kentucky Equal Justice Center.