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Kentucky Pro-Life Groups Hope to Avoid a Kansas Repeat
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Kentucky Pro-Life Groups Hope to Avoid a Kansas Repeat

A proposed constitutional amendment aims to protect new abortion restrictions from legal challenges.

The Supreme Court’s Dobbs v. Jackson Women’s Health decision in June punted the regulation of abortion back to the states, whose political processes can get pretty messy. See, for instance, how Kentucky is handling the issue.  

The Bluegrass State is one of the most restrictive in the nation on abortion, passing several overlapping bills in recent years to limit abortion rights. In April, the state legislature passed—over Gov. Andy Beshear’s veto—a ban on abortions after 15 weeks. But that law and others before it became less relevant after the Supreme Court overturned Roe v. Wade with its Dobbs decision. That’s because a 2019 “trigger law” outright abolished the procedure, save for exceptions to protect a mother from death or serious injury, in the event that the court allowed states to regulate abortion again. 

Now, Kentucky voters will get a chance to weigh in themselves. This year’s midterm elections will include a proposed constitutional amendment put forward by pro-life groups. “To protect human life,” the amendment says, “nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

It may seem a strange strategic choice in a state where abortion is already illegal. Other proposed amendments—on the ballot this year in deep-blue states like California—would enshrine the right to abortion in their state constitutions as proactive attempts to ensure their already pro-choice laws can’t be overturned later. Kentucky’s proposal, by only stating that a right to abortion doesn’t implicitly exist in the constitution, wouldn’t prevent a Democratic legislature from moving later to liberalize the state’s abortion regime.

There’s recent reason for pro-lifers to be apprehensive about putting abortion directly on the ballot: In Republican Kansas, voters last month roundly rejected a measure that would have amended the state constitution to allow the legislature to regulate abortion. Some nontrivial number of Republican voters, it seems, will pull the lever against abortion bans.

Why, then, this push in Kentucky? The proposed amendment is a proactive defense of the state’s abortion bans against legal challenges currently pending against them, which have been brought by a coalition of progressive groups including Planned Parenthood and the American Civil Liberties Union.

Under Roe and derivative cases, the outcomes of these challenges were predetermined: The Constitution guarantees a right to an abortion, a state cannot unduly burden that right, everyone’s home by dinner. Today pro-abortion-access litigants are trying to recreate the legal structure of Roe on the state level—arguing that access to “reproductive healthcare” can be found in state constitutions.

EMW Women’s Surgical Center v. Cameron was filed on June 27 on behalf of several state abortion clinics. “The guarantees of individual liberty provided in Sections One and Two of the Kentucky Constitution,” the plaintiffs argue in the filing, “protect the right to privacy.” In turn, “the constitutional right to privacy protects against the intrusive police power of the state, putting personal and private decision-making related to sexual and reproductive matters beyond the reach of the state.”

The plaintiffs won two early victories when a circuit court issued a restraining order against enforcement of the abortion bans on June 30 and a temporary injunction on July 28. But the Kentucky Court of Appeals reversed this decision on August 1 and allowed the bans to go into effect. The Kentucky Supreme Court plans to hear the case shortly after the midterm elections. 

That court, which elects justices to 10-year terms in nonpartisan elections, has no identifiable partisan lean, according to a 2020 Ballotpedia analysis. Pro-life groups, unsure how the court would respond to the suit, see the proposed constitutional amendment as a way to cut off the plaintiffs’ legal case at the knees: Arguing that a right to an abortion is implicit in the text of a document is hard when that document contains language explicitly stating no such right is present.

“Two of the Supreme Court justices have said that they are going to wait until after the election on November 8 to see what happens with this constitutional amendment,” state Rep. Nancy Tate, co-chair of the legislature’s Pro-Life Caucus, told The Dispatch. “Not only is this constitutional amendment important for the future, it’s very important for the current time—to make sure that our Supreme Court justices understand that we are a pro-life state.”

Despite the dearth of public polling on the initiative, both sides are bullish.

“Most people—regardless of their political affiliation—do not believe that people should not be able to access abortion under no circumstance,” said Jackie McGranahan, a policy strategist for ACLU of Kentucky. “They’re trying to make an issue a black or white issue when there’s so much gray.”

While McGranahan pointed to the Kansas result, pro-life groups tend to wave it off. The language of that initiative, they say, was too confusing to be a good predictor of national sentiment.  

The Kentucky amendment “allows the lawmakers, reflecting the true values of the people of Kentucky, to be the decision-makers,” said Addia Wuchner, a former state legislator who now serves as executive director of Kentucky Right to Life. “It also keeps rogue judges from adjudicating abortion law from the bench, creating rights or interpreting rights that may or may not be there.” 

But will voters see the nuance about judicial activism? Some conservatives worry voters will simply consider the amendment a referendum on the current state of abortion restrictions in Kentucky, which includes no exceptions for cases of rape or incest.

“This constitutional amendment doesn’t have anything at all to do with rape, incest, or the health of the mother,” Rep. Tate said. “It would prevent the judicial branch from legislating from the bench.”

One state conservative activist described conversations with Kentuckyians whose feelings about the earlier laws have bled into their feelings about the proposed amendment. “They’ll say things like, ‘I don’t know if I’m going to vote for this because of … ’ and it’ll always be something in the trigger law,” he said. “I don’t think it’s merely a question for most people who will go into the voting booth about whether or not the state constitution affirmatively conveys that right.”

Andrew Egger is a former associate editor for The Dispatch.