Some lawyers offer to work without charge for KY doctors fearing prosecution over abortion law

With Kentucky’s “trigger law” on pause, medical providers and Kentucky attorneys are facing confusion on how to handle potential court proceedings if the law is reinstated and it becomes illegal for doctors to perform most abortions.

Attorneys from around the state and outside of the commonwealth are working together to provide pro bono services to providers in case they do face criminal charges for operating a procedure which had been federally protected for nearly 50 years before the U.S. Supreme Court overturned Roe v. Wade last week.

Under Kentucky’s trigger law, which was passed by state lawmakers in 2019 as a way to immediately outlaw almost all abortions in the event that Roe v. Wade was overturned, obstetricians performing abortions or providing abortion pills to women could face up to five years in prison and charged with a Class D felony.

A Louisville judge temporarily blocked the enforcement of the trigger law which allows the procedures to continue until at least July 6. This decision was a result of a lawsuit filed on Monday by Kentucky’s two remaining abortion providers who sued the state. The judge will determine later whether or not the law violates Kentucky’s Constitution.

During the temporary injunction, providers are scrambling to understand what they are legally allowed to do, and what advice they can offer their patients.

Lawyers try to help figure out ‘gray area’ in KY abortion law

Michelle Lawson, a domestic violence and sexual abuse advocate attorney in Hazard, said Kentucky’s trigger law leaves a lot of gray area for providers.

“I spoke to one doctor who felt she couldn’t practice properly because of this trigger law,” Lawson said. “There are times where medically, abortions are a necessary option to explain to a patient, and these doctors feel they are not able to explain that.

“Sometimes, an abortion is the only treatment in certain situations, and with this law, some feel they are not able to tell patients their proper treatment.”

David Borum, a Louisville attorney, agreed.

“I know that obstetricians and OB GYNs are feeling that – and I am sure that many feel the same way – when they are trying to care for a patient their mission to do so is without judgment and with science, but this law creates all kinds of gray areas where a doctor can’t rely on science, but a law does that does not create or leave room for science.”

Lawson also said the exception in the law, which allows doctors to perform an abortion if they believe it’s necessary to prevent death or substantial risk of death for the mother, is too vague.

“They are only allowed when they can help save the life and health of the mother,” she said. “Well what does that mean for the law? Those emergencies will be up to a hospital attorney to decide what is an appropriate time to perform an abortion in the situation. Sometimes doctors only have two minutes to make a decision, and what happens if you can’t get a hold of a hospital attorney?”

With abortion laws changing daily as a result of court proceedings, both Lawson and Borum are offering their services pro bono to providers fearing they could face prosecution.

Lawson said in a tweet that she would provide pro bono services, and if she couldn’t take a case due to distance, she’d try to refer the person to another attorney.

The tweet received over 35,000 likes and 13,000 retweets.

Aside from one death threat, Lawson said the response to her post has been overwhelmingly positive. Other attorneys have reached out to provide their services.

“I have had about 10 to 20 attorneys call to say they can help in other states as well,” Lawson said. “I have had people in Louisville reach out, as well as Somerset. I have had offers from non-attorneys who want to help out in any way they can.”

‘Providers are feeling frustrated and confused’

Borum is also offering pro bono services to watch, monitor, track and report the changes made to the trigger law and court proceedings, to let doctors know their options.

He said after Friday’s decision, a national organization of attorneys met with over 1,300 attorneys and law students – all volunteers – to discuss what they can do to help.

“There are some attorneys that are doing their own things, but an organization of volunteers that are paying close attention to this,” Borum said. “We have not seen this prosecuted in Kentucky, but we understand providers especially, but women also, want to know their options, but providers are feeling frustrated and confused on what they can and cannot do.”

Right now, Borum, Lawson and Gov. Andy Beshear all say that all they can do is wait for the court system.

“Right now we are going to have to see how it plays out in the court. Things are changing very quickly and the ACLU is doing amazing work to stop the trigger ban,” Lawson said. “(The trigger ban) is very vague, so we have to try to flesh out the meaning in the court system.”

As doctors try to figure out what they are or aren’t allowed to do, Beshear said Thursday he’s “trying to figure out where the courts are going to come out ... with their rulings.” Beshear has been critical of the trigger law, especially its lack of exceptions for victims of rape and incest, and called it “extremist.”

When asked if he would grant clemency to doctors facing prosecution, Beshear said he hadn’t “looked at it yet.”

Wisconsin Gov. Tony Evers said he would grant clemency to doctors charged over his state’s abortion law, which also bans most abortions.

Lawson said if anyone else wants to become a volunteer or offer services, they can do so by contacting the Kentucky Health Justice Network.