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Clinics fight to restore access to abortion in Kentucky

The only two abortion providers in the commonwealth claim the new ban triggered after the Supreme Court overturned Roe v. Wade violates the Kentucky Constitution.

LOUISVILLE, Ky. (CN) — Planned Parenthood and EMW Women’s Surgical Center, the last remaining abortion providers in Kentucky, filed suit against the commonwealth on Monday, arguing an abortion ban imposed in the wake of the Supreme Court ruling last week to overturn Roe v. Wade is unconstitutional.

The clinics, along with Dr. Ernest Marshall, owner of EMW, challenged Kentucky’s six-week abortion ban and its so-called “trigger ban,” which imposes criminal penalties on anyone who provides an abortion or abortion-inducing drug to a pregnant woman, except in what the providers call “extremely limited” medical emergencies.

Filed in Jefferson County Circuit Court by the ACLU on behalf of the clinics, the lawsuit says both statutes violate the rights to privacy and self-determination guaranteed in Kentucky's Constitution, and will have a disparate impact on low-income and black Kentuckians.

The trigger ban, crafted by legislators to become effective “immediately upon ... any decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade,” allows the commonwealth to ban abortions entirely and includes no exceptions for rape or incest.

Kentucky’s separate six-week ban, which includes very limited exceptions for medical emergencies, requires a physician to determine if there is a fetal heartbeat before performing an abortion, and if one is detected, it is a Class D felony to perform the procedure.

The ACLU’s response to last week's Supreme Court decision in Dobbs v. Jackson Women's Health Organization was swift, and officials within the organization made it clear they will not easily cede the rights previously established by Roe.

“The Supreme Court’s decision to take away a right we have relied on for 50 years has caused devastation in Kentucky and across the country,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “We hope the court blocks Kentucky’s abortion bans to prevent the life-altering harm they are causing.

She added, “Since Friday, Kentuckians have been turned away from appointments and denied the ability to control their own bodies and futures. The impacts will be long-lasting, with countless people enduring serious health risks from forced pregnancy and childbirth.”

A complete ban on abortions will deprive women in Kentucky of "the right to make critical decisions about their health, bodies, lives, and futures," according to the complaint.

The ACLU cited Centers for Disease Control and Prevention statistics showing pregnancy has become more dangerous for women over the past decade, with a "'startling increase' in maternal deaths between 2014 and 2018."

Abortions are "essential health care," according to the clinics, and the sudden deprivation of access to the procedure will have far-reaching economic and medical consequences on women across Kentucky, especially those in low-income households.

“For most individuals,” Planned Parenthood said, “traveling long distances to access time-sensitive abortion care in another state is extremely difficult, and in many cases the burdens of travel — including travel expenses, finding childcare, and arranging time off work or school — will make it impossible to obtain the desired abortion at all.”

Although the clinics intend to fight in court to reestablish access to abortion for women in the commonwealth, Kentucky voters may nullify their efforts later this year.

Republican lawmakers voted to add Constitutional Amendment 2 to the November 2022 ballot, which asks voters whether abortion is a state right.

The amendment reads: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

Protesters massed near the federal courthouse in downtown Louisville on Friday and over the weekend in the wake of the Supreme Court's decision to overturn Roe, and the Kentucky chapter of the ACLU made it clear it won't give up without a fight.

“The ACLU of Kentucky is bringing everything it has to the fight for abortion access following this devastating ruling,” said Amber Duke, ACLU of Kentucky interim executive director. “We are mobilizing our members, supporters, and volunteers to show up at the statehouse and the ballot box to demand our rights to bodily autonomy.”

“As we navigate a future in which the government can force Kentuckians to remain pregnant against their will, we'll be doubling down on our work to end maternal mortality, secure paid leave, and expand access to childcare.”

The lawsuit, filed by lead attorney Michele Henry from Craig Henry PLC in Louisville, seeks an injunction to prevent enforcement of both bans, as well as a declaration they are unconstitutional.

Kentucky Attorney General Daniel Cameron, a Republican, spoke about the decision and emphasized the availability of abortions is now up to the states.

“To be clear,” Cameron said, “there is no right to abortion contained in the Commonwealth’s Constitution — and we will stand up against any baseless claim to the contrary.

“I have always stood strong in defense of life, and I will continue to advocate for our laws, which protect pregnant women and unborn babies. The U.S. Supreme Court’s decision in Dobbs definitively stated that each state is the authority on protecting unborn life, and our General Assembly’s passage of the Human Life Protection Act made it clear that most abortions are now illegal.”

At a Monday lunch event in the Cincinnati suburb of Florence, Kentucky, Senate Minority Leader Mitch McConnell reiterated his belief that abortion is a state’s rights issue.

“What the court did in effect was return this very controversial issue to the people and their representatives so it can be decided through the democratic process,” the Republican leader said. “It takes 60 votes in the Senate for either side to prevail on this issue, so I think the democratic process on this issue is going to work out at the state level.”

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