Was ‘no’ vote on anti-abortion amendment a mandate? KY GOP leaders don’t think so.

Ahead of the General Assembly’s 2023 session, Kentucky lawmakers are weighing how much — if at all — they want to loosen the state’s trigger law banning the procedure after voters struck down an anti-abortion access ballot proposal.

Kentuckians directly weighed in on the question of abortion earlier this month and said ‘no,’ by a margin of 5 percentage points, to the state’s proposed anti-abortion constitutional amendment.

Now the future of abortion policy hangs in the balance with the Kentucky Supreme Court hearing a challenge against the state’s trigger ban on abortion. But where should the legislature go next? That depends on both the outcome of the litigation and who in the legislature you ask.

Many among the GOP majority in Frankfort, at least its leaders, aren’t so sure that the vote means anything for their policy, which is among the most anti-abortion rights in the nation. House GOP Floor Leader Steven Rudy, R-Paducah, said that he doesn’t see the defeat of Amendment 2 as a mandate of any sort.

“I don’t,” said Rudy, who was quick to point out that the GOP gained seats in both the Senate and House chambers.

The argument of what the vote should mean played out some when the Kentucky Supreme Court held its first hearing on the subject Tuesday. Deputy Chief Justice Lisabeth Hughes called the vote “the purest form of democracy” and attorneys for the state’s trigger ban argued that because the vote was so close, the issue should be solely under the purview of the General Assembly.

“I understand the importance of the representatives, the people in the General Assembly, but it strikes me that a ballot initiative is the purest form of democracy. It is the people themselves speaking, not through someone else,” Hughes said.

Rudy, like the litigators for Attorney General Daniel Cameron’s office, pointed to how close the vote was.

“At the end of the day, the amendment carried more counties than it didn’t... It was still pretty close and the marketing to defeat the amendment was much more powerful than the marketing for it,” Rudy said.

Indeed, Protect Kentucky Access, the group who backed the “no” vote and supports broadening reproductive rights in the state, boasted a roughly 6-to-1 fundraising advantage over Yes For Life, a largely religious collective that’s against abortion. The pro-abortion rights group brought in around $6.3 million, while the anti-abortion side raised just over $1.1 million.

But even so, Rudy added that the caucus will “be looking at” adding more exceptions to the current ban on abortion — as of now, it only allows abortion in cases where the health of the pregnant person is threatened.

Rep. Jason Nemes, R-Louisville, won a race for reelection that wasn’t particularly close. But his opponent, Democrat Kate Turner, ran a vigorous campaign whose opposition messaging centered around Nemes’ votes against amendments that would have added rape and incest exceptions to the current abortion ban.

Now Nemes, who just won a GOP caucus vote to become the new House majority whip, says he will file a bill to introduce those exceptions in the upcoming legislative session.

However, it’s not a foregone conclusion that Democrats in the legislature, whose party has consistently bashed Republicans for the trigger ban, would support a bill that provided just those exceptions.

House Democratic leadership is in flux with the retirement of Minority Leader Joni Jenkins, D-Shively, and the electoral defeat of House Minority Whip Angie Hatton, D-Whitesburg, leaving only Caucus Chair Derrick Graham, D-Frankfort, intact. So, getting a read on what that caucus would or would not support is difficult. But at least one Democratic House member said she wouldn’t support a bill that only provided the exceptions.

Rep. Nima Kulkarni, D-Louisville, said that only extending exceptions to victims of rape or incest would mean unfairly foregoing a larger conversation about access to abortion in Kentucky. She said that a lack of rape and incest exceptions in the trigger ban is likely why Amendment 2 lost, but that a “middle ground” with more access to abortion should exist between Republicans and Democrats.

“There is one group of legislators that is trying to restrict all access, and then there’s another group that is trying to leave that decision up to Kentuckians individually,” Kulkarni said. “There is a middle ground there, but just conceding that we’re only going to have exceptions for rape and incest from the outset, I don’t know that, for my district, I’m doing my job if I only concede that much. I don’t want that larger conversation to get lost, because just having those exceptions is going to jeopardize the lives of a lot of other pregnant people in this state.

“We can’t just sort of write (those people) off and leave them to their own devices because of political expediency.”

Still, a Kentucky Supreme Court ruling – though it’s now only considering a temporary plea for relief, that court is highly likely to be the final arbiter on the abortion laws’ constitutionality – that overturns the law could render this discussion, and Nemes’ planned legislative effort, moot.

Rudy added that beyond exceptions, House Republicans could also look at ways to provide clarity to medical professionals — some of whom have criticized the General Assembly’s laws for their effect on medical care — on abortion. Kulkarni added that clarification for medical providers might be “a more rational place to start.”

Why do they think it failed?

Kentucky Democratic Party Executive Director Sebastian Kitchen said that Amendment 2’s defeat was proof that “a majority of Kentuckians disapprove of the extremism of the Republican majority in the Legislature.”

Statehouse Democrats agree, with Rep. Lisa Willner, D-Louisville, echoing Kitchen.

“Kentuckians really clearly said that kind of extremism, they don’t want that in their politics or from their politicians,” she said.

But many elected Republicans don’t think the ‘no’ vote was an expression of voter sentiment on abortion or perceived extremism. Instead, they blame its loss on the lack of, or misleading nature of, information about the amendment; as well as an inadequate fundraising effort. They also take heart in the fact that Kentuckians keep sending anti-abortion politicians — growing Republican caucuses in the House and Senate — to state-level offices.

“I think there is support for the trigger law. The fact that the General Assembly just expanded its pro-life complement shows that there are more people that support that law… the electorate just elected an even more pro-life General Assembly. We’re gonna keep protecting life,” Sen. Whitney Westerfield, R-Crofton, said.

Westerfield was among several statehouse Republicans who put together a press conference in an attempt to address alleged “misinformation” from Protect Kentucky Access about the amendment days before the election. In the process, the group ended up spreading some misinformation regarding physician concerns about the trigger law and taxpayer funding of abortions, which is already illegal in Kentucky.

Senate President Robert Stivers was singing a similar tune in the days following the amendment vote. He was disappointed that more money wasn’t rounded up to combat PKA’s messaging, and because of the fundraising disparity said that he didn’t see the ‘no’ vote as a referendum of any kind.

“So many people didn’t know how to vote or where to come down on the issue. Our expectation was that there would be some money that would come in to combat what was being said about the amendment — because I think it was tremendously distorted,” he said.

GOP Senate Floor Leader Damon Thayer cast Yes For Life — the primary group advocating for the failed amendment — and its director, Addia Wuchner, as a disappointment for anti-abortion politics in Kentucky.

Echoing Stivers, he said that fundraising goals and promises on the anti-abortion side were simply not met. If they were, he said, that might have made the difference in a close vote.

“These pro-choicers don’t seem to have problems raising money, but the pro-life side never came through with the money… Addia Wuchner promised us in 2021, that she needed a year and a half to raise a million dollars to try to get that effort passed. And you know: she didn’t come anywhere close to that. And I don’t think the messaging was very effective on the pro life side, either,” Thayer said.

Wuchner has yet to respond to a request for comment on Thayer’s remarks.