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Abortion remains illegal in Kentucky while state Supreme Court reviews case set for Nov. 15

By Jack Brammer
NKyTribune reporter 
The ban on abortions in Kentucky will remain in effect at least until the Kentucky Supreme Court considers in November a legal challenge by abortion providers.

The state’s highest court denied a request Thursday by abortion advocates to put a temporary ban on state laws that restrict abortion access.

The Supreme Court also scheduled oral arguments in the case for Nov. 15 – a week after Kentuckians go to the polls to vote on a proposed constitutional amendment that would eliminate the right to abortion from the state’s constitution.
If the amendment passes, the state Constitution would then pre-empt any court ruling for state abortion rights. The U.S. Supreme Court in June said there is no federal constitutional right to abortions in overturning the 1973 Roe v. Wade decision that allowed abortions.

The Supreme Court

The American Civil Liberties Union, the ACLU of Kentucky, and Planned Parenthood Federation of America had asked the Kentucky Supreme Court to overturn a state Kentucky Court of Appeals order earlier this month requested by Attorney General Daniel Cameron that allowed two 2019 state abortion bans to go into effect.
They were the so-called “trigger law” that was designed to stop abortions in Kentucky except when a mother’s life is in danger once the U.S. Supreme Court overturned the 1973 Roe v. Wade decision and a ban on abortions after six weeks of pregnancy.

Cameron’s office said in a statement after Thursday’s high court ruling, “This morning, the KY Supreme Court denied an attempt to reopen abortion clinics in Kentucky.

“The court’s order ensures that Kentucky’s Human Life Protection Act and Heartbeat Law remain in effect while the court case continues. We are pleased with this victory for life and the rule of law and will continue to prepare for the arguments the court has scheduled.”

Samuel Crankshaw, a spokesperson for the ACLU, noted that the Supreme Court order is only for an emergency motion.

“The courts have yet to rule on the merits of the challenge to the abortion bans, which the plaintiffs have argued violates the right to privacy, bodily autonomy, and self-determination guaranteed by the Kentucky Constitution,” he said.

Crankshaw said Planned Parenthood and the ACLU “are committed to helping Kentuckians get the care they need, including helping patients find care out of state.”

He said anyone who needs an abortion should visit abortionfinder.org and abortionfunds.org, or call 1-800-230-7526.

Leaders from Planned Parenthood and ACLU said, “The Supreme Court’s decision to allow Kentucky’s abortion bans to remain in effect puts nearly a million people’s health care in jeopardy.

“Abortion is not only health care but also a critical individual freedom. Make no mistake: abortion bans result in tragic health outcomes and are a form of control over our bodies.

John D. Minton Jr.

“Despite this setback, the fight continues. We will proceed with our case to restore and protect reproductive freedom in Kentucky. Politicians and the government should never have the authority to force a person to remain pregnant against their will.”

Kentucky Gov. Andy Beshear said the high court order leaves in place an “extremist law” that does not allow any exemptions for rape and incest victims. Cameron, a Republican, wants to unseat the Democratic Beshear in next year’s elections.

The appellate court ruling ended a temporary injunction entered by the Jefferson Circuit Court in a lawsuit filed by the abortion advocates for the state’s only two abortion clinics, both in Louisville.

The high court noted the laws in question effectively outlaw abortion in the state except in limited instances when necessary to preserve the life of a pregnant woman.

Neither law contains an exception for victims of the crimes of rape or incest to obtain an abortion if they become pregnant.

The high court granted the Court of Appeals’ recommendation to transfer the case to it.

The Supreme Court gave all parties until 4:30 p.m. Sept. 19 to submit an initial brief no longer than 50 pages. Interested parties wanting to file friend-of-the court briefs in support of any party have until Oct. 4 to do so.

All parties shall submit a response brief, not to exceed 25 pages in length, by October 24 by 4:30 p.m.

Oral arguments will be held at 10 a.m. Nov. 15 in the Supreme Court courtroom in the state Capitol in Frankfort. Each side will have 30 minutes to argue its case.

Concurring in Thursday’s order were Justices Robert B. Conley, Debra Hembree Lambert, and Laurance B. VanMeter.

Chief Justice John D. Minton Jr. concurred in part and dissented in part in a separate opinion and was joined by Deputy Chief Justice Lisabeth T. Hughes. Both are retiring at the end of the year.

Justice Michelle M. Keller concurred in result only by a separate opinion and was joined by Justice Christopher Shea Nickell.

Keller is being challenged in the Nov. 8 election by state Rep. Joe Fischer, the author of the “trigger law” and a sponsor of the constitutional amendment to be on the November ballot, for the Supreme Court’s 6th District. It runs from Northern Kentucky to Oldham and Shelby counties.

Minton, in his opinion said Court of Appeals Judge Larry E. Thompson was wrong in reinstating the abortion ban and that access to abortions should continue while the case is being decided.

He said, “Few modern issues have proven more significant, and more politically contentious, than access to abortion. Individuals and groups on both sides of the debate hold passionate and sincere convictions regarding their respective positions.

“Debate regarding abortion access will continue to permeate our political discourse for years to come.”

Minton said, “We acknowledge the magnitude of our decision with awareness that regardless of the decision we render many citizens of this Commonwealth, who hold sincere and passionate beliefs, will be deeply disappointed.

“While our civil rules may be highly technical and confusing, especially for non-lawyers, the practical effect of our decision today is not complicated. In being called upon to rule on this motion for emergency relief, this court is essentially determining whether access to abortion will exist in the Commonwealth during the pendency of the … litigation.”

Minton added, “Moreover, the legal issues raised in this action are of significant statewide importance and provide extraordinary cause warranting emergency review by this Court.

“We do not review this case in a vacuum. This Court cannot turn a blind eye to the fact that this case involves one of the most contentious policy and political issues of our time. And the fact that the parties agree on transfer to this Court is an acknowledgement of what is at stake in this litigation.”

Michelle Keller

He said the case “raises serious and important issues involving access to abortion and the abortion advocates make a compelling argument that women may suffer irreparable and permanent harm absent emergency relief from this court.

“And the attorney general also advances serious allegations of irreparable harm, alleging that any abortions performed during the pendency of this litigation cannot be reversed.”

“It is difficult to comprehend a more important or serious legal issue than legal access to abortion in the Commonwealth,” said the chief justice.

In her opinion, Keller said, “Members of the judiciary, and in fact all human beings, are often called upon to weigh competing interests. Rarely, however, are we tasked with weighing interests that are as heavy and as important as those at stake in the case at bar. The interests on both sides of this debate are compelling and bear on the health and welfare of all Kentuckians.”

She said it is vital for the Supreme Court to “expediently undertake a full and impartial review of the matter.”

“In order to accelerate this review, we reluctantly concur with the result reached by the plurality of this court,” said Keller, “However, we share many of the concerns expressed in the dissent in part regarding the Court of Appeals’ exercise of its discretion in granting emergency relief to the attorney general.

“The Court of Appeals not only failed to give appropriate deference to the trial court but also failed to undertake a thorough analysis that is required in a case of this magnitude, failing even to set forth the appropriate standard of review.

“That being said, remanding this matter to the Court of Appeals to engage in a proper analysis would only further delay the final resolution of these compelling issues. Recognizing that matters of life, death, and health are at stake, time is of the essence.”

Keller noted that Kentucky voters will have the opportunity to vote on the constitutional amendment prior to oral arguments in the case.

“We look forward to that expression of the will of the Commonwealth,” she said. “Until then, and until this court has had an opportunity to review a complete record, including briefing and oral arguments, we concur in result only with the plurality of this court.”

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