Kentucky’s highest court will soon decide whether or not to continue to uphold or pause the state’s two abortion bans while the case moves through the justice system.
The Kentucky Supreme Court heard oral arguments on Tuesday about whether to uphold the state’s two abortion bans triggered after the Dobbs decision overturned Roe v. Wade earlier this summer.
Roe v. Wade federally protected the right to an abortion, but the decision was returned to individual states after the decision.
The state’s two abortion trigger laws – Human Life Protection Act and Heartbeat Law — took effect after the June United States Supreme Court ruling.
The ACLU immediately filed lawsuits on behalf of EMW Women’s Surgical Center and Planned Parenthood, the only two abortion providers in Kentucky.
The arguments come a week after voters in Kentucky voted against a constitutional amendment that would have eliminated the right to an abortion in the Commonwealth’s constitution.
Kentucky Solicitor General Matt Kuhn argued to the court that it should ignore the vote and they should interpret the constitution as it was written before the vote.
“That vote failed,” Kuhn said, “And so the words of our Constitution did not change. And so this court is interpreting the same words today in our constitution that existed before the vote. And so I would suggest that the decision not to add words to our Constitution does not change the meaning of the words that are already there.”
He further argued that the decision should be left up to the legislature, where voters can decide who represents them and decide on their legislators.
Michelle Keller, the 6th District Supreme Court Justice, said she understood that the constitution’s words are what they were before Nov. 8.
But, she then asked why the General Assembly even added that language to the ballot.
“But, I’m struggling with why then the General Assembly thought it’s so important to put that initiative on the ballot to amend the Constitution because if nothing else, it costs 1000s upon 1000s of taxpayer dollars to do that,” Keller said.
ACLU attorney Heather Gatnarek said the bans interfere with the ability of individuals and their doctors to make decisions about an individual’s own health and self-determination.
It is the job of the legislature to legislate, but they must do so within the confines of what the Supreme Court tells them, Gatnarek further argued.
“We do not yet have before us any evidence that this General Assembly is interested in undertaking a thoughtful balancing between the state’s interest and individual privacy and self-determination rights,” Gatnarek said.
Keller said that the court sees 10- and 11-year-olds impregnated by rape and incest, and it’s not an issue of preserving life but of health and safety.
“Our constitution specifically talks about self-determination in reference to one’s own safety,” Keller said. “And that’s in the very first section of our Bill of Rights. And I can’t overlook that compelling language.”
The court will now decide whether to uphold a temporary injunction made by a circuit court judge that would effectively block the ban. The case will most likely go back to circuit court for a trial.