Kentucky’s Supreme Court on Thursday allowed two abortion restrictions to remain in place but left larger constitutional questions unanswered about whether access to the procedure should be legal in the state.
The high court had been weighing challenges to the state’s near-total ban and a separate one that outlaws abortion after the sixth week of pregnancy. It sent the case back to a lower court for further consideration of constitutional issues related to the more restrictive ban.
Members of the Faith and Family advocacy group, listen to speakers during a rally in the rotunda of the Kentucky State Capitol in Frankfort, Ky., Thursday, Feb. 16, 2023. (AP Photo/Timothy D. Easley)
Thursday’s ruling comes after Kentuckians rejected a ballot measure last year that would have denied any constitutional protections for abortion. The justices heard arguments in the case a week after the November midterm elections. The state’s Republican-led Legislature passed both of those laws.
The justices ruled on narrow legal issues, clarifying that their decision does not determine whether the state constitution does or does not protect the right to receive an abortion.
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“Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date,” Deputy Chief Justice Debra Hembree Lambert wrote.
The American Civil Liberties Union of Kentucky lamented the court’s decision but vowed to “never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky.”
Kentucky’s Republican attorney general, Daniel Cameron, called the ruling a “significant victory,” and said his office will continue to defend laws that “stand up for the unborn by defending these laws.”
The legal challenge brought by two Louisville abortion providers revolves around the state’s near-total trigger law ban and six-week ban. The trigger law was passed in 2019 and took effect when the U.S. Supreme Court overturned Roe v. Wade last summer. It bans abortions except when they’re carried out to save the life of the mother or to prevent disabling injury. It does not include exceptions for cases of rape or incest.
In July, a Louisville judge, Mitch Perry, halted enforcement of the bans because he found that they likely violated the state constitution’s rights to privacy and self-determination. He said it wasn’t the court’s role to determine whether the state constitution guarantees the right to abortion, but it is its role to decide whether the new bans violate constitutionally guaranteed freedoms.
But the state Court of Appeals reinstated enforcement of the bans and the state Supreme Court opted in August to keep them in place while it reviewed the case.
Members of the Faith and Family advocacy group, a pro life organization, hold a rally in the rotunda of the Kentucky State Capitol in Frankfort, Ky., Thursday, Feb. 16, 2023. (AP Photo/Timothy D. Easley)
On Thursday, the high court ruled that the abortion providers, who challenged the two bans on the premise that they violate patients’ constitutional rights, lacked the “third-party standing” to do so.
Lambert, though, wrote that the providers do have “first-party” constitutional standing to challenge the trigger ban, pointing to “financial harm” as sufficient grounds for such standing.
As a result, the justices sent that part of the case back to the circuit court in Louisville to review the plaintiffs’ claims that the trigger ban violates the state constitution.
However, the abortion providers offered “no arguments concerning their own rights” in challenging the six-week ban, the court noted.
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With Kentucky’s near-total ban left intact, abortion rights groups said they would continue helping Kentuckians “get the care they need, including helping patients find care out of state.”
The Associated Press contributed to this report.
