On June 24, in a case called Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade, the 1973 decision that established access to abortion as a constitutional right. For almost 50 years, Roe and a subsequent case, Planned Parenthood v. Casey in 1992, have set the parameters of the abortion debate.
In many ways, Roe created the abortion debate as we have known it these past five decades. Now that it’s gone, what does it mean? In particular, what does it mean for Kentucky?
Kentucky has a long history of enacting pro-life legislation. In the 1990s, the General Assembly enacted a robust informed consent statute; in the early 2000s, a fetal homicide bill; and in the past five years, a flood of bills aimed at reducing abortion and protecting the unborn.
The legislature adopted a ban on abortions after 20 weeks of pregnancy, as well as a requirement that a woman seeking an abortion be given the opportunity to view an ultrasound. The ultrasound law was challenged in court but ultimately upheld. More recently, the legislature has passed a ban on abortions after 15 weeks, modeled after the Mississippi statute at issue in Dobbs.
Most significantly, however, is HB 148 from the 2019 session. In HB 148, legislators enacted what is known as a “trigger law.” It is called that because it was written to take effect (or “trigger”) when the Supreme Court overturned Roe. That law immediately took effect and prohibited all abortions that are not necessary to save the life of the mother or to preserve a life-sustaining organ.
Kentucky briefly became an abortion-free state. It is difficult to overstate how dramatic of a change this is from the reality we have known for most or all of our lives. Other states’ laws are different, and not all states will ban abortion, at least not at this point. But, for Kentucky, this overarching goal of the pro-life movement was achieved.
Kentucky’s two abortion providers, represented by the ACLU of Kentucky, filed suit in Kentucky courts, arguing for a right to abortion under the Kentucky Constitution. On July 22 Jefferson Circuit Judge Mitch Perry agreed and issued an injunction, preventing the trigger law from being enforced and temporarily allowing abortions to continue. That decision is being appealed and the question could ultimately be decided by the Kentucky Supreme Court. If the abortion providers prevail, it would result in a state-level Roe v. Wade decision, striking down most or all of the pro-life laws listed above.
While Kentucky’s Constitution certainly makes no mention of abortion, it is not entirely far-fetched that Judge Perry’s interpretation could be upheld by higher courts. In recent years, Iowa and Kansas have seen their state courts declare that their constitutions protect a right to abortion, striking down the pro-life laws passed by their state legislatures.
We have an opportunity to prevent this from happening here. In 2020, the Kentucky legislature passed HB 91, which places a proposed constitutional amendment on the ballot this November that will prevent our state courts from ever issuing a decision like Roe v. Wade. The amendment is very simple and straightforward. It says,
“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.”
At this November’s general election, this will be Amendment #2, presented to the voters as a yes/no question at the very end of the ballot. Kentuckians are pro-life, and if there is a healthy level of participation we are confident this amendment will pass. But, not everywhere will see other competitive races, which might discourage turnout. Also, many voters prefer to vote a straight party ticket and do not pay close attention to the rest of the ballot, particularly the parts following judicial and other non-partisan races.
This is a unique opportunity to express a clear pro-life vote. Remember to vote. Remember to go to the end of the ballot to vote YES on Amendment #2. Remind friends and family to vote YES. Consider volunteering to speak at your parish or other events during this October’s Respect Life Month in the weeks leading up to the election.
This is an exciting time for the cause of life. If we can educate and turn out the vote, we can ensure that Kentucky’s unborn are protected for many years to come.
Jason Hall is executive director of the Catholic Conference of Kentucky, the public policy arm of Kentucky’s four bishops.