Future of abortion in Kentucky could be decided by voters in November

LOUISVILLE, Ky. (WDRB) -- A constitutional amendment on the November election ballot will give voters in Kentucky the opportunity to decide on the future of abortion rights in the state.

That amendment, which will be featured on every ballot, is asking voters if they believe abortion is a right outlined in the state's constitution. It will read:

"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."

Voters can vote "yes" to agree that there is no right to abortion outlined in the Kentucky constitution, or "no" to argue it does provide that liberty.

"This mirrors efforts that are being undertaken in several other states to set up what might be seen as a roadblock to prevent state courts — especially state supreme courts — to finding there is a right for a woman to have an abortion in their state constitutions," said Sam Marcosson, a law professor at the University of Louisville.

Many states are taking this same measure to ensure lawsuits that argue the constitutionality of abortion bans, much like the one filed by the ACLU in Kentucky, won't stand. Legal experts say that even if the Kentucky Supreme Court — which is examining whether or not the state constitution protects abortion rights — rules in favor of abortion, a "yes" vote will make the ruling moot.

"The voters ultimately would have decided, 'You know what, we think the constitution doesn’t do that'," Marcosson said.

Rep. Jason Nemes, R-Louisville, part of the GOP-dominated legislature that pushed to get the constitutional amendment on November's ballot, said it was a measure lawmakers wanted to make ahead of litigation.

"This was a preemptive approach to say, 'In the event that Roe vs. Wade is overturned — thereby clarifying that there is no right to abortion in the U.S. Constitution — we want to also note that herein, being in our own constitution, should be construed as providing such a right to an abortion," he said.

The ACLU, on behalf of the two abortion clinics in the state of Kentucky, filed a lawsuit arguing that the state's bans on abortion violate the Kentucky constitution. They say it infringes on rights of privacy and bodily autonomy.

Nemes pointed toward the establishment of the state's constitution to dismiss that claim.

"It’s not arguable in a straight-faced way among a disinterested lawyer that the Kentucky constitution provides the right to abortion," he said. "It never has. We had laws before our 1890 constitution that was adopted that already outlawed abortion."

Court battles between the ACLU and the Attorney General's Office continue through an emergency restraining order that is allowing abortions to resume for now.

The most recent hearing, on Wednesday, saw attorneys for the two parties calling witnesses to testify on the impact of abortion bans for both sides. The testimony precedes a judge's decision on a temporary injunction that would ensure abortions could continue until an official ruling from the Kentucky Supreme Court.

Filings from the attorneys are due July 18, and the judge will rule on the injunction after that.

Legal experts believe this is just the tip of the iceberg of legal battles surrounding abortion.

"It doesn’t mean it will end all questions about abortion, because you can still have questions about what happens if it’s necessary to save the life of a mother," said Russell Weaver, a constitutional law professor at UofL. "I think that’s dealt with under Kentucky’s law, but what if she shows she’s going to have severe psychological problems from not having an abortion? We don’t know what exceptions exist."

It's not clear when the Kentucky Supreme Court could make a ruling.

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