Abortion Illegal in Kentucky As Top Court Keeps Bans in Place

Abortion is nearly completely illegal in Kentucky, as the state’s top court allowed the enforcement of both a trigger ban and a six-week ban Thursday pending further litigation.

The abortion providers who brought the case lacked third-party standing to make a constitutional argument on behalf of their patients with respect to the six-week ban, the court said. An “appropriate party” could raise that claim at a later date, it said.

But the providers have first-party standing to challenge the trigger ban on their own behalf, the court said. They suffered an injury-in-fact in the form of financial harm because they’ve had to turn away patients seeking abortions, it said.

The Kentucky Supreme Court’s decision permits the state to seek criminal penalties against providers that violate a near-total “trigger” abortion ban that went into effect after the US Supreme Court declared in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion.

Abortion providers sued in several states to have such laws declared invalid under state constitutions, but Kentucky’s top court declined to rule on that issue, instead sending the case back to the trial court that initially blocked the laws’ enforcement.

To date, only two state top courts—Idaho and South Carolina—have decided the state constitutional issue, reaching opposite conclusions.

The Kentucky Supreme Court expressly said that it wasn’t deciding whether the state constitution protects abortion. Kentucky voters in November rejected an anti-abortion ballot measure that would have amended the state constitution to exclude the right to terminate a pregnancy before viability.

The trigger ban precludes anyone other than a patient from knowingly and intentionally terminating a pregnancy through medical or surgical means. It’s a Class D felony, meaning it’s punishable by up to five years in jail.

Also at issue was a six-week ban that makes it a Class D felony for any person to perform an abortion once a “heartbeat” has been detected. Abortion providers say that only electrical impulses, not an actual heartbeat, can be detected at this early point in a pregnancy.

Both bans contain exceptions for an abortions necessary to save the life of the pregnant person, but neither law has an exception for rape, incest, or severe fetal anomalies.

A trial court had halted the state’s enforcement of both laws, but a state appeals court dissolved the injunction and recommended transfer to the supreme court, which accepted the case.

The providers can still assert live issues as to whether the trigger ban improperly delegates legislative authority and whether it became effective upon the authority of an entity other than the state’s lawmaking body, the court said. The provision would be invalid if the providers received a favorable decision on these questions, it said.

The trial court blocked the state from enforcing the laws based on a lack of access suffered by patients. But, because the providers’ lacked third-party standing to assert that the trigger ban violated the patients’ alleged constitutional rights, the trial court abused its discretion in finding that enforcing the law would cause irreparable harm, the court said.

The trial court also erred in balancing the alleged harm to the plaintiffs against the state’s interests, Justice Debra Hembree Lambert’s majority opinion said.

Justice Robert B. Conley concurred, and Chief Justice Laurance B. VanMeter concurred in the result only.

Justices Angela McCormick Bisig and Michelle M. Keller joined each other’s separate opinions, in which they concurred in the first-party standing decision, said the providers had third-party standing, and would have upheld the injunction pending review of the constitutional question.

Justice Christopher Shea Nickell agreed with lifting the injunction, but disagreed that the providers had any standing to bring the suit. Justice Kelly Thompson argued that the providers had both first-party and third-party standing.

EMW Women’s Surgical Clinic PSC; Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky; and a doctor brought the suit.

Craig Henry PLC, ACLU of Kentucky, O’Melveny & Myers LLP, American Civil Liberties Union Foundation, and Planned Parenthood Federation of America represent the providers. The state attorney general’s office represents Kentucky.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Cameron v. EMW Women’s Surgical Ctr., PSC, Ky., No. 2022-SC-0329, 2/16/23.