Kentucky Supreme Court keeps abortion ban in place

FRANKFORT, Ky. (CN) — Kentucky’s Supreme Court has kept the state’s near-total abortion ban in place, affirming the reversal of a temporary injunction which halted the law while a circuit court considers a challenge from abortion rights supporters. 

In a lengthy order issued Thursday morning, Justice Debra Lambert wrote for the majority that the trial court which granted the injunction incorrectly found that patients and providers faced irreparable harm if a pair of anti-abortion laws went forward.

She found that abortion providers do not have first-party standing to challenge a so-called heartbeat ban, which bans abortion after six weeks of pregnancy, or to challenge a trigger ban, which prohibits almost all abortions, on behalf of their patients. 

The doctors, Lambert wrote, had not established that they had any close relationship with their patients or that there was any obstacle to patients coming forth to challenge the bans themselves. Anonymity concerns, she wrote, did not cut the mustard because patients could sue pseudonymously. 

Lambert also cited what she called a conflict of interest.

“The statutes might create a situation wherein a physician has a gravely ill pregnant patient, but because of the threat of criminal and civil penalties under the bans, the physician may hesitate in rendering life-saving treatment to the pregnant patient,” the ruling states. “And, under the heartbeat ban, a woman may sue a physician that performs or induces an abortion upon her in violation of that statute. Consequently, the abortion providers’ interest in not being civilly or criminally prosecuted under the statutes appears to potentially conflict with a pregnant woman’s interest in receiving adequate medical care.” 

However, the majority found the providers do have first-party standing to challenge the trigger ban, an issue that was remanded to the circuit court.

Lambert’s 43-page majority opinion was followed by over 100 pages of dissents and concurrences.

In her partial concurrence, Justice Angela Bisig wrote that the majority “declines its responsibility to ensure the citizens of this Commonwealth are not left without a forum to address substantial allegations of constitutional infirmity.” 

The decision, she added, was “premised on a misapplication of non-controlling statements in federal caselaw, fails to acknowledge the significant hurdles faced by citizens seeking to enforce their claimed constitutional rights… and argues alleged conflicts of interest between patients and reproductive healthcare providers where none exist.” (Emphasis in original.)

Bisig agreed that the providers had first-party standing for their trigger ban challenge, but argued that the court should have reinstated the temporary injunction. 

Kentucky’s abortion ban was triggered following the U.S. Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health, which overturned its 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions in holding that the U.S. Constitution does not confer a right to abortion. It is one of 13 states with trigger bans, most of which lie in the southern Midwest. An additional six states maintained pre-Roe bans which became enforceable after Dobbs. 

Kentucky’s American Civil Liberties Union branch, which provided counsel for the abortion providers that brought the suit, issued a statement condemning the decision and name-checking a recent vote that shot down a ballot measure seeking to ban abortions. 

“Once again, the Kentucky Supreme Court failed to protect the health and safety of nearly a million people in the state,” the ACLU said. “Even after Kentuckians overwhelmingly voted against an anti-abortion ballot measure, abortion remains banned in the state. We are extremely disappointed in today’s decision, but we will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky.” 

Kentucky Right to Life, one of the state’s major anti-abortion groups, issued its own statement. 

“Abortion facilities have been closed for over 198 days and they remain closed,” the organization’s executive director, Addia Wuchner, wrote. “We will continue to work, pray and advocate to protect the lives of unborn children and to work with their moms to make abortion unthinkable.” 

“Today we celebrate, we have turned the page; this chapter has a happy ending,” she concluded. “But this book on life is far from over.” 

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