State Supreme Court refuses to restore injunction blocking two laws, so in almost all cases abortion remains illegal in Kentucky

By Melissa Patrick and Al Cross
Kentucky Health News

Abortion in Kentucky remains illegal in almost all cases while a lawsuit by the state’s two abortion providers over the issue continues in the courts, the state Supreme Court ruled Thursday.

In a much anticipated but highly fractured decision, the court refused to restore a Louisville judge’s injunction that temporarily blocked two abortion bans last summer.

“We hold that the abortion providers lack third-party standing to challenge the statutes on behalf of their patients,” Justice Debra Lambert of Somerset wrote in the Feb. 16 opinion. “Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf.”

Lambert also wrote, “To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.”

The providers contend that the two bans violate a right to privacy that isn’t specified in the state constitution but has been found in earlier decisions of the court. Jefferson Circuit Judge Mitch Perry provisionally agreed with them last July and issued an injunction blocking the bans. Now te case goes back to him for more proceedings, which will start the case’s path back to the Supreme Court.

The bans make abortions illegal in Kentucky except when the pregnancy poses a risk to the woman’s life, or when fetal cardiac activity has begun, usually around six weeks into pregnancy and often before a woman knows she is pregnant. Both bans took effect last year after the U.S. Supreme Court overturned Roe v. Wade, the 1973 case that created a national right to abortion.

Perry’s ruling was stayed by Court of Appeals Judge Larry Thompson of Pikeville, and a badly divided Supreme Court allowed it to stand while voters considered a constitutional amendment that would have made the case moot by saying the state’s basic law creates no right to abortion. By 4.7 percentage points, voters rejected the amendment.

A week later, the court heard oral arguments, but was unable to reach a decision before two seats changed hands. They were held by the two justices who clearly wanted to keep the injunction in place: then-Chief Justice John Minton of Bowling Green and then-Justice Lisabeth Hughes of Louisville. Neither sought re-election. They were replaced by Kelly Thompson of Bowling Green, who moved up from the appeals court, and Angela McCormick Bisig of Louisville, who rose from the Jefferson circuit.

The newly constituted court ruled without hearing additional arguments, and was even more fractured than the old court had been. Only Justice Robert Conley of Russell joined Lambert’s controlling opinion. Justice Shea Nickell of Paducah agreed with them that Perry had abused his discretion, but said in a long dissent that the abortion providers had no right to challenge the laws until they were actually enforced, so the case should be dismissed.

Bisig, Thompson and Justice Michelle Keller of Fort Mitchell agreed only on a threshold procedural issue, whether the abortion providers had standing to sue, and disagreed with other parts. Bisig and Keller each wrote stronly worded dissents that the other joined. Thompson said Perry should move quickly but let “all interested parties” intervene in the case.

The justice that some observers have seen as the critical swing vote in the case, Chief Justice Laurance Van Meter of Lexington, concurred only in the result.

Bisig’s dissent said that the court should have followed “decades of well-settled jurisprudence” and considered the constitutional issues. She said its decision “permits the criminal prosecution of persons who assist incest and rape victims in terminating a resulting unwanted pregnancy” and “allows enforcement of the bans despite its own express acknowledgement that those statutes may ‘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 or altogether fail to render that treatment.’”

Attorney General Daniel Cameron,who is seeking the Republican nomination for governor, praised the controlling decision. “This is a significant victory, and we will continue to stand up for the unborn by defending these laws,” he said in a news release.

The Planned Parenthood Federation of America, the American Civil Liberties Union, and the ACLU of Kentucky on behalf of the abortion providers, EMW Women’s Surgical Center and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky issued a statement saying the court “failed to protect the health and safety of nearly a million people in the state . . . We will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky. This fight is not over.”

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