What’s next for abortion access in KY? Majority of lawmakers mum on their stance, ideas
As the year comes to a close, abortion in Kentucky remains largely illegal and inaccessible six months after a statewide trigger law took effect.
Though currently criminalized, the future of abortion access in the commonwealth is uncertain. With less than a week until the start of the Kentucky General Assembly’s 2023 regular session on January 3, members of the Republican supermajority — the party that has primarily championed laws restricting abortion access — have given little indication publicly about whether they plan to modify the existing bans.
No bills pertaining to reproductive health care access have been pre-filed, and only 11 of more than 130 total lawmakers responded to a late November Herald-Leader survey asking questions on this topic, including whether representatives thought the state’s abortion ban should be amended to include rape and incest exceptions. They were given until December 23 to respond.
Separately, the Kentucky Supreme Court has yet to weigh in on a lawsuit from the state’s two outpatient abortion clinics challenging the constitutionality of the GOP-authored trigger law and fetal heartbeat law. Both measures went into effect in late June after the U.S. Supreme Court overturned Roe v. Wade. The fetal heartbeat law sets a prohibition on abortion after fetal cardiac activity is detected, typically around six weeks of pregnancy. Kentucky’s trigger law aims to ban abortion except in medical emergencies when it’s required to protect the life of a pregnant person.
Health care providers have criticized the trigger law’s vaguely defined medical exceptions for arbitrarily interfering with routine evidence-based obstetrical and gynecological health care. For example, the law doesn’t offer clarification on how providers should treat lethal fetal anomalies — conditions that make survival after birth impossible, but might not immediately or directly endanger the health of a pregnant person. Republican Attorney General Daniel Cameron’s office has issued a brief advisory attempting to clarify a handful of circumstances when providers can perform abortions without risking a felony charge.
EMW Women’s Surgical Center and Planned Parenthood sued the state days after the pair of laws took effect, arguing that they infringe on an individual’s right to privacy, bodily autonomy and self-determination, which both clinics say are protected rights under the Kentucky Constitution. The high court held oral arguments in the case on November 15 but hasn’t yet issued a ruling. Justices are deciding whether to reinstate a lower court injunction from this summer that temporarily blocks both laws from being enforced.
Though lawmakers and the high court’s justices have yet to collectively weigh in on the issue in a post-Roe world, the public has, to a degree. In November, voters rejected Amendment 2, a largely Republican-backed proposal that would’ve changed the state constitution to make clear there is no protected right to abortion. This change, alone, would not have outlawed abortion. But it would’ve barred courts from interpreting a right to abortion as existing within the constitution, all but eliminating judicial oversight over the state’s abortion restrictions. Amendment 2’s failure leaves the door open for courts to interpret abortion as a constitutionally-protected right.
Even if the high court opts to temporarily block either ban from being enforced, the final resolution in the case likely won’t come for months. In the meantime, both laws have nearly rid the state of legal abortions. Pregnant people are traveling across state lines, including to Illinois, Indiana and Ohio. Illinois has codified local abortion protections, and a statewide abortion ban and a six week ban in Indiana and Ohio, respectively, are currently blocked, meaning limited access in those states is temporarily restored.
There is no “middle ground”
Ahead of the Kentucky General Assembly’s 2023 regular legislative session, which begins January 3, there’s been little indication from the state’s supermajority on whether it plans to make changes to the existing abortion restrictions. The Herald-Leader polled all sitting and incoming lawmakers on in a six-question survey initially sent November 29. Here’s what we asked:
What are your primary reasons for supporting or not supporting statewide abortion restrictions in Kentucky?
Do you support adding exceptions to the state’s trigger law, which currently outlaws abortion except to save a pregnant person’s life?
If so, which exceptions do you support? Why?
If a bill is proposed to add rape and incest exceptions to Kentucky’s trigger law, will you support it?
Please elaborate on why you would or would not support adding rape & incest exceptions to Kentucky’s trigger law.
In your opinion, what should state abortion policy look like in Kentucky?
Only two of the 11 legislators who responded are Republicans: Sen. Whitney Westerfield, R-Crofton, and Sen. Adrienne Southworth, R-Lawrenceburg. Neither supports adding rape or incest exceptions to the statewide ban.
“I believe all life begins at conception, and that voiceless, unborn children have rights worthy of protection as do the mothers that carry them,” Westerfield wrote. “As a result, I support policies that recognize and protect both lives impacted by abortion.”
Westerfield, who was outspoken in his support of Amendment 2, said he would “prefer no additional exceptions to the trigger law,” but he “wouldn’t vote against” exceptions, including for rape and incest, if they were proposed.
“Children conceived under such evil, horrific circumstances are still innocent human beings,” he said. “They had no more control over the circumstances of their conception and birth than anyone reading this did, and they shouldn’t be murdered for it.”
Westerfield said he is also “willing to add clarifying language to protect routine OB care and infertility treatments.”
Southworth said adding blanket exceptions beyond medical emergencies may violate a fetus’ due process rights. “I believe due process of law is the only way to deprive anyone of the right to life under our Constitutions, and creating a blanket statutory exception does not adequately balance a question between two lives in the constitutional sense of ‘due process,’” she wrote.
In cases where pregnancy is caused by rape, Southworth said she has a “major concern” about how to “verify” that a rape occurred.
“Rapes are among the hardest crimes to prove, and can take much longer than nine months to prove. With often no eyewitnesses, we are back to the honor system which does not sufficiently provide ‘due process’ to the life of the baby,” she wrote.
The Democrats who submitted survey responses are: outgoing Sen. Denise Harper Angel, D-Louisville; outgoing Rep. Kelly Flood, D-Lexington; Sen. Reggie Thomas, D-Lexington; Rep. Ruth Ann Palumbo, D-Lexington; Rep.-elect Lindsey Burke, D-Lexington; outgoing Sen. Morgan McGarvey, D-Louisville; Rep. Derrick Graham, D-Frankfort; Rep.-elect Chad Aull, D-Lexington; and Rep.-elect Daniel Grossberg, D-Louisville.
Each supports reversing the state’s abortion bans, at the very least adding exceptions to the current law. Grossberg said he supports “every exception necessary to restore the autonomy that existed prior to the ban. It isn’t our place to decide which women should and should not have basic rights.”
Burke wrote “no restrictions on reproductive health care are appropriate, but if only exceptions can be had at this time, then they should be available for cases where the mother or child’s health or safety are in danger, such as during an ectopic pregnancy, and where the pregnancy is arising out of rape or incest, at the very least.”
Aull said amending the current ban to include rape and incest exceptions is the “bare minimum.”
“It is not the job of the General Assembly, or any politician, to interfere with health care matters that rightfully fall between a doctor and a patient,” Aull wrote. “It must be the legislature’s job, however, to remove barriers to life-saving medical care.”
Graham, minority caucus chair, said even if the legislature opted to add rape and incest exceptions, it isn’t enough.
“Of course those who have been raped or are the victim of incest must have access to abortion, but stopping there is wrong,” he wrote. “This is not some ‘middle ground,’ as some would have us believe, because it would still take away the constitutionally-protected choice women absolutely deserve, and it would continue to endanger all women by blocking proper medical care.”
Graham continued, “We’ve already heard numerous stories about providers limiting an array of services to legally protect themselves because it might cause an abortion, even in cases where pregnancy is not a factor. Women are paying a high price for this ‘caution,’ and it must stop.”
