Kentucky Supreme Court challenges law

Several Kentucky Supreme Court justices were skeptical of the state’s abortion ban, one of the most restrictive in the United States, on Tuesday during oral arguments in a case that will decide whether women have access to the procedure for the foreseeable future.

The Women’s Surgical Center of EMW, a Louisville-based abortion clinic, called on the Kentucky high court to temporarily block a ban that makes no exceptions for rape or incest. He makes an exception when the mother’s life is in danger, although this decision is made by a doctor.

The Kentucky high court hearing comes after voters rejected an amendment in the midterm elections that stated there was no right to abortion under the state constitution .

Kentucky’s Republican attorney general’s office argued Tuesday that the state’s constitution is neutral on abortion and that regulation of the procedure is a matter for the legislature to decide. Matthew Kuhn, the state solicitor general, argued that there is no historical evidence that the state constitution, adopted in 1891, includes a right to process.

“When it comes to abortion, our constitution here in Kentucky is just plain silent,” Kuhn explained. “And there’s not a shred of historical evidence, none of this court’s case law and none of our constitutional debates, that suggests our constitution implicitly protects abortion,” Kuhn said.

Associate Chief Justice Lisabeth Hughes countered that there were no women at the 1890 constitutional convention and that at the time women were not allowed to vote or even own property except in limited circumstances.

“I have some questions about whether we need to base our decision in 2022 on what happened in 1890,” said Hughes, who described voters’ rejection of the anti-abortion constitutional amendment last week as the “purest form of democracy”.

Judge Michelle Keller, who formerly practiced as a registered nurse, said the state constitution protects the right to self-determination. Keller said the ban’s limited exceptions when the patient’s life is in danger don’t give the mother a role in even making that decision.

Instead, the doctor on call determines whether an abortion is medically necessary, and in many cases doesn’t know what’s legal under the ban, Keller said. Doctors waste valuable time consulting with hospital risk managers and lawyers to ensure they are performing an abortion covered by the exception to the ban, she said. Performing an abortion is a felony punishable by up to five years in prison in Kentucky.

“If there’s a man bleeding in the ER, he has all the self-determination in the world, and so do most women, unless they’re pregnant, and then suddenly there’s more self-determination. And then the doctor tries to reach the attorney general,” Keller said.

Judge Laurance VanMeter appeared to question the lack of exceptions to the ban for rape and incest. While some people view abortion as an acceptable form of birth control, he said, state courts have to deal with horrific crimes involving minors.

Kuhn, representing the state attorney general, said the legislature has not met since the ban took effect and may include such exceptions in the future. But Chief Justice John Minton pointed out that the legislature had not passed an amendment earlier this year that would have provided for those exceptions.

Kuhn said the court could issue an injunction that would allow abortion in cases of rape and incest, but keep the rest of the ban in place.

Heather Gatnarek, an ACLU attorney representing the plaintiffs, said Kentucky’s abortion ban causes irreparable harm to the patients the state’s two abortion clinics serve by forcing them to remain pregnant against their will, putting them at risk to their physical and mental health.

It’s unclear how the seven-member Kentucky Supreme Court will ultimately rule. If they block the near-total ban while litigation continues in a lower court, a 15-week abortion ban that is also on the books would remain in place.

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