Battle over abortion in Kentucky isn’t quite over. 800,000 of us can help with one vote

Amid all the tumult and emotion last Friday when the U.S. Supreme Court overturned Roe v. Wade, something came up that I and many others had completely forgotten about. In addition to the trigger laws and House Bill 3, which seem to ban abortion six times over in Kentucky, we will be voting on a constitutional amendment on the November ballot to outlaw abortion here yet again.

The Republican-led General Assembly passed the amendment in 2020, but with no elections in 2021, this was the first time it could appear. The language is simple, broad and vague: “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.”

The lead sponsor was Rep. Joe Fischer, an passionate abortion foe who is now running for the Kentucky Supreme Court against Justice Michelle Keller in the Northern Kentucky region.

“It carves out abortion from a right to privacy, very specifically, and sets the landscape for them to carve out more of our privacy rights down the line,” said Rep. Rachel Roberts, one of the rare Democrats from Northern Kentucky. “They were playing the long game.”

Legal questions

Right now, it’s already impossible to get an abortion in Kentucky thanks to a trigger law passed in 2019 that outlaws abortions, including in the case of rape and incest. On Tuesday, the ACLU sued to stop that law saying that the state constitution, both clinics argue, protects not only one’s right to privacy but bodily autonomy. On Friday, a Jefferson County judge granted a one-week restraining order against the trigger law, allow abortions to proceed there.

The law does allow an exception if the life of the mother is in danger, but that exception is not mentioned in the amendment, so it’s not totally clear which one would take precedence. In any event, the amendment would ban abortion in the case of rape and incest.

Paul Salamanca, a constitutional lawyer at the University of Kentucky, said generally speaking, later laws replace earlier ones. But in this case, he thinks it’s a very plausible argument to say that “the Constitution protects your right to obtain a medical procedure you need not to die.”

Salamanca, who is representing Republican legislative leadership in their legal battles with Gov. Andy Beshear over COVID, also said there’s a rule that more specific laws govern more general ones.

“I would argue it’s a significant implied right,” he said.

The vague language is part of the problem, said Anna Whites, a Frankfort attorney.

“This language is incredibly overbroad as well as being vague and confusing,” she said. For example, in medical jargon, any fetus that doesn’t survive is technically described as an abortion. “We had six miscarriages for two children, and all of those miscarriages are in my medical records as abortions,” she said.

As the wording stands, “you’re taking away bodily autonomy and privacy,” Whites added. “Once one right is eroded many others are.”

In the Dobbs decision, after all, Justice Clarence Thomas urged the court to take on cases like gay marriage and contraception.

“If you can start amending the Constitution at will to promote a political agenda,” Whites said, “then only white men are safe.”

Political issues

Often, state politicians choose an incendiary topic to get the base out to vote. In 2004, the General Assembly passed a measure to add an amendment banning gay marriage. It passed by 75 percent. (The amendment was nullified by the Obergefell v. Hodges decision in 2015, but if the U.S. Supreme Court overturned Obergefell, gay marriage would once again be banned in Kentucky.)

This time around, Republicans saw that the chances of overturning Roe looked better than it had in many years. The abortion amendment will also bring out the base in the midterms, and given recent election data, the odds are that it will pass. But the recent Roe decision may convince the Democratic base and new voters to make more of a showing this time around. It would require a win that mimics somewhat the victory of Gov. Andy Beshear, picking up votes in population-rich, university-heavy cities with lots of young people. Beshear only won by 5,000 votes, but it was enough.

So when people keep asking what they can do in the wake of Roe’s death, this is one very concrete thing.

“If you are a reproductive rights proponent, first and foremost you have to train yourself to vote in every single election,” Roberts said. “People need to get in the habit every time, it matters so dramatically what happens at your local, state and federal level. People need to know to vote NO on this.”

Jackie McGranahan, a policy strategist with the ACLU of Kentucy, said the amendment passing would make their current court challenge against the trigger law much more difficult because they are arguing that the state constitution does cover privacy and bodily autonomy, which in turn, covers abortion. But the amendment’s explicit language would quickly end that argument.

“If we win and that language doesn’t get added to the Constitution, then we do have a chance, the right to an abortion could be protected in Kentucky,” she said.

And she thinks the amendment could be defeated because many Kentuckians still believe in a right to abortion, and many more may not understand that there are no exemptions in the laws, except the life of the mother. According to an analysis by the Protect Kentucky Access, there are 3.5 million registered voters with a projected turnout in November of around 45.7 percent. That would require about a little over 800,000 votes to defeat the amendment. In 2018, Kentucky voter turnout was 45.9 percent.

The Democratic Governor’s Association released a poll this week that showed 62 percent of Kentuckians opposed an abortion ban with no exceptions.

“It is winnable,” McGranahan said. “Absolutely, everyone should talk to people about voting no on the amendment.”

I’m less optimistic but I admire the spirit. I used to think that threats to lost progress represented by the far-right ascendancy was hyperbolic. But now it’s very clear that making women and people of color and LGBTQ people and little girls raped by their relatives second class citizens is part of a well-planned scheme. And once again, there’s only one way to stop it: At the voting booth.