Following the defeat of an anti-abortion constitutional amendment in Kentucky, reproductive rights hang in the balance of the state Supreme Court and anti-abortion lawmakers are trying to figure out how to regulate abortion going forward.
Some Republicans are mulling whether to introduce a new bill with exceptions to allow abortions in cases of rape and incest. Others aren't willing to consider any exceptions.
Rep. Nancy Tate, a Republican from Brandenburg, said it’s hard to predict what the next session will look like. But she said she wants voters to weigh in on another anti-abortion constitutional amendment.
“Absolutely. The misinformation that was communicated about this constitutional amendment is just unbelievable,” she said.
Tate and several other Republican lawmakers held a press conference before the election to call out alleged “misinformation” from abortion rights advocates about the amendment. They claimed opponents wrongly characterized the proposal as a ban on abortion. Though the amendment wouldn’t have outlawed abortion, it would have made it harder to challenge the near-total ban that already exists.
But Kentucky voters rejected the referendum, which would have added language to the state constitution saying that nothing in the document guarantees abortion access.
Now lawmakers are waiting for a decision from the Kentucky Supreme Court, which heard a lawsuitfrom abortion rights advocates arguing that the state constitution guarantees abortion access.
It’s unclear how the court will rule, but during oral arguments, some justices grilled Kentucky Solicitor General Matt Kuhn, who defended the abortion ban. He argued that voters who rejected the amendment based their understanding on alleged “misinformation” from abortion rights advocates.
Justice Lisbeth Hughes pushed back, calling the ballot initiative “the purest form of democracy.”
“It is the people themselves speaking, not through someone else with whose views they may completely agree or disagree with," she said.
University of Louisville law professor Sam Marcosson said it’s possible the court blocks part of Kentucky’s bans–allowing abortions to proceed in cases of rape and incest. But the ruling could go further, depending how justices interpret the constitution.
“If they did it for an injunction for just cases of rape and incest, they would be saying we are recognizing a right here. And we are recognizing it at least this far. And once they set the precedent that it exists, it opens the door to them having to litigate how broad it is,” he said.
The challenge came from the state’s two abortion providers and the American Civil Liberties Union, who are seeking to strike down Kentucky’s “trigger law,” which outlaws abortion except in life-threatening cases, and a separate six-week ban.
What the Republican Legislature could do next
Kuhn, the attorney general’s lawyer who argued the case before the Supreme Court, said lawmakers have reached out to the attorney general’s office about filing a bill that includes rape and incest exceptions.
“Our General Assembly has not met post the Dobbs decision, they’ve not gotten the ability to weigh in. Indiana just passed an abortion law that included exceptions in tragic circumstances and rape and incest so I hope the General Assembly considers this issue and the courts allow them to weigh in,” he said.
Earlier this year, Indiana lawmakers passed a bill banning most abortions, though it includes narrow exceptions for cases of rape, incest and certain serious medical complications.
Sen. Whitney Westerfield, a Republican from Crofton and chair of the Senate Judiciary Committee, said it’s tough to predict how the Legislature will handle the abortion issue until the Supreme Court ruling comes in.
“Right now it’s impossible to know. But I think there’s enough support for a compromised solution that matches up with most voters,” he said.
Westerfield said he is considering filing a new constitutional amendment that includes exceptions for rape and incest.
“I think there would be members of the Legislature and both parties that would support that. These are permissible exceptions and we’ve had conversations about it,” he said.
Lawmakers had opportunities to include exceptions for rape and incest whenthey passed the bans through the Legislature, but repeatedly declined.
Westerfield said lawmakers haven’t had the opportunity to weigh in after the Dobbs decision came in over the summer. He said that could reopen the possibility of including exceptions.
“We’ve had conversations about including exceptions before, but they just didn’t pass. So now we need to have the opportunity to weigh in after the Dobbs decision, so we can have that conversation again,” he said.
Tate, the sponsor of Kentucky’s “omnibus” abortion law, said she doubts Republicans would get behind a bill that includes exceptions.
“We have the most pro-life legislature we’ve ever had in history. I wouldn't be at all surprised if somebody follows that road of including exceptions for rape and incest, but I'm not so sure that the legislative body will be prepared to carry or to support that language,” she said.
What’s next for Democrats?
After Republicans padded their majorities in the Legislature this year, Democrats now have 20 seats in the 100-member House and seven seats in the 38-member Senate.
Louisville Democratic Rep. Nima Kulkarni said some of her colleagues are open to supporting a “middle-of-the-road” bill that includes exceptions. But she said that isn’t enough.
“The bill to include those exceptions would really be for political expediency and provides political cover for Republicans. The argument cannot stop at just those exceptions,” she said.
Kulkarni said she hopes Democrats are energized to fight for reproductive rights after voters rejected the anti-abortion amendment.
“It would be a great disservice to Kentucky if there are legislators on my side of the aisle that do not accept the fact that just providing an exception for rape and incest would leave out so many individuals and their health, their finances and their capacity to determine their own life,” she said.
Even if the Supreme Court agrees to temporarily block Kentucky’s trigger law and six-week ban, a 15-week ban on abortion would likely still be in place.
Lawmakers passed the 15-week ban earlier this year, mirroring the Mississippi law that was upheld by the U.S. Supreme Court in its Dobbs decision.
Kentucky’s version of the 15-week ban was not challenged in state court, though a federal lawsuit over the measure is ongoing.
Kulkarni said even if the Supreme Court blocks some of Kentucky’s most restrictive abortion bans, the slew of anti-abortion legislation passed by the Legislature in recent years would still curtail reproductive rights.
“They've weighed in over and over in trying to restrict access to abortion any way they can,” Kulkarni said. “They’ve had opportunity after opportunity to mitigate it to say there should be exceptions, to clarify the language for healthcare professionals. But they didn't do that. So it’s hard to trust them when they’re only working towards political cover.”
