Several Kentucky supreme court justices on Tuesday sounded skeptical of the state’s abortion ban, one of the restrictive within the U.S., during oral arguments in a case that can determine whether women have any access to the procedure within the foreseeable future.
EMW’s Women’s Surgical Center, an abortion clinic based in Louisville, has called on Kentucky’s high court to temporarily block a ban that doesn’t make any exceptions for rape or incest. It does make an exception for when the mother’s life is at risk, though that determination is made by a physician.
The hearing before Kentucky’s high court comes after voters rejected an amendment in the course of the midterm elections that said there isn’t a right to an abortion under the state structure.
The office of Kentucky’s Republican attorney general on Tuesday argued that the state structure is neutral on abortion and regulating the procedure is a call for the legislature. Matthew Kuhn, the state solicitor general, argued there isn’t a historical evidence that the state structure, adopted in 1891, features a right to the procedure.
“In terms of abortion, our structure here in Kentucky is solely silent,” Kuhn argued. “And there shouldn’t be a shred of historical evidence, none from this court’s case law and none from our constitutional debates, that implies our structure implicitly protects abortion,” Kuhn said.
Deputy Chief Justice Lisabeth Hughes countered that there have been no women on the constitutional convention in 1890 and girls on the time didn’t have the best to vote and even own property except in limited circumstances.
“I actually have some questions on the need of grounding our decision in 2022 on what occurred in 1890,” said Hughes, who described voters’ rejection of the anti-abortion constitutional amendment last week because the “purest type of democracy.”
Justice Michelle Keller, who once practiced as a registered nurse, said the state structure protects the best to self-determination. Keller said the ban’s limited exceptions for when the patient’s life is at risk doesn’t give the mother a task in making even that call.
As an alternative, the physician on call makes that determination about whether an abortion is medically crucial and in lots of cases they have no idea what’s legal under the ban, Keller said. Doctors are wasting your time consulting with hospital risk managers and lawyers to be certain they’re performing an abortion covered by the ban’s exception, she said. Performing an abortion is a felony punishable by as much as five years in prison in Kentucky.
“If there is a man bleeding out within the ER, he has all of the self-determination on this planet, and most ladies do too, unless they’re in a state of pregnancy, after which suddenly there isn’t a self-determination. After which the physician is attempting to get ahold of the attorney general,” Keller said.
Justice Laurance VanMeter appeared to query the ban’s lack of exceptions for rape and incest. While some people view abortion as an appropriate type of contraception, he said, state courts should take care of horrific crimes involving minors.
Kuhn, representing the state attorney general, said the legislature has not met because the ban went into effect and will include such exceptions in the long run. But Chief Justice John Minton identified that the legislature didn’t pass an amendment earlier this 12 months that will have provided those exceptions.
Kuhn said the court could issue an injunction that will allow abortion in cases of rape and incest but keep the remaining of the ban in place.
Heather Gatnarek, an ACLU attorney representing the plaintiffs, said Kentucky’s abortion ban causes irreparable injury to the patients the state’s two abortion clinics serve by forcing them to stay pregnant against their will, subjecting them to physical and mental health risks.
It’s unclear how Kentucky’s seven-member supreme court will ultimately rule. In the event that they do block the near-total ban while litigation continues in a lower court, a 15-week abortion ban that is also on the books would remain in effect.
