Ky. Supreme Court denies request to block abortion ban as litigation continues

FRANKFORT, Ky. (KT) – The Kentucky Supreme Court denied a request by EMW Women’s Surgical Center and Planned Parenthood—the commonwealth’s only abortion providers—for emergency relief against the state’s trigger abortion ban on Thursday (August 18). Abortion remains illegal in Kentucky as the case moves forward in the state’s highest court.

The seven-judge panel’s decision is not a ruling on the merits of the challenge to Kentucky’s abortion ban and heartbeat law, though the state’s abortion providers have argued both violate the rights to privacy, bodily autonomy and self-determination found in Kentucky’s constitution.

“Because of the importance of these issues, it is vital that this Court…expediently undertake a full and impartial review of the matter,” said Justice Keller in a concurring opinion, in which Justice Nickell joined. “Recognizing that matters of life, death, and health are at stake, time is of the essence.”

An oral argument is scheduled for Tuesday, Nov. 15, where each party will have 30 minutes to present their case. Both will address issues raised throughout the legal battle over Kentucky’s trigger abortion ban and are required to address the application of Kentucky’s 15-week abortion ban, which went into effect in July. Initial briefs are due Sept. 19 and amicus curiae briefs in support of either party can be submitted by Oct. 4.

Justices Conley, Lambert and VanMeter concurred with the order; Justices Keller and Nickell concurred in result by separate opinion; and Chief Justice Minton and Hughes concurred in part and dissented in part. The Supreme Court agreed to take on the case following a transfer recommendation from the state’s Court of Appeals.

Kentucky’s attorney general, Daniel Cameron, praised the decision.

“We are pleased with this victory for life and the rule of law and will continue to prepare for the arguments the Court has scheduled,” Cameron said.

David Walls, executive director of the Family Foundation, called the order was a victor for unborn babies and the rule of law.

“As the U.S. Supreme Court made clear in overturning Roe, the issue of regulating abortion belongs to the people and their elected representatives in the General Assembly, not to activist state-level judges,” Walls said. “I am grateful that unborn babies will remain protected while the case continues and for the continued pro-life leadership of Attorney General Daniel Cameron and his team.”

A joint statement from leaders of Planned Parenthood, the ACLU and the ACLU of Kentucky decried the order:

“The Supreme Court’s decision to allow Kentucky’s abortion bans to remain in effect puts nearly a million people’s health care in jeopardy. Abortion is not only health care but also a critical individual freedom. Make no mistake: abortion bans result in tragic health outcomes and are a form of control over our bodies. Despite this setback, the fight continues. We will proceed with our case to restore and protect reproductive freedom in Kentucky.”

Kentucky voters will have a say in the matter on November 8, when a pro-life constitutional amendment will be on the ballot.

Constitutional Amendment 2, if ratified this fall, would create a new section in the Kentucky constitution that reads: “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.”

Though Thursday’s court order acknowledged the constitutional amendment, which bears directly on many of the issues at stake in the case, it did not say how the vote might impact litigation if the constitution is amended to address the claims of Kentucky’s abortion providers.

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