ACLU challenges Kentucky abortion bans claiming state constitutional right to abortion

The organization has asked a judge to issue a temporary pause on the bans to allow two clinics to resume providing abortions.
Published: Jun. 29, 2022 at 4:00 PM EDT
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LOUISVILLE, Ky. (WAVE) - Kentucky’s two abortion providers started a last ditch legal move to keep providing services in the state.

They’re arguing Kentucky’s Constitution gives women the right to an abortion, now that the U.S. Supreme Court ruled there is no federal right.

It may sound like a Hail Mary pass, but this kind of argument has succeeded in other states.

Both the Tennessee and Iowa Supreme Courts found abortion was protected under their state constitutions in years’ past.

Now the American Civil Liberties Union is trying the argument here in Kentucky.

In front of Jefferson County Circuit Judge Mitch Perry, the ACLU argued Kentucky’s six-week abortion ban and trigger law banning nearly all abortions violate Kentucky’s Constitution. They’ve asked the court to issue a pause on both laws.

“Kentucky courts have actually held that our privacy right is more protective and is broader and has been held to protect things the U.S. Supreme Court wasn’t already protecting,” said Kentucky ACLU attorney Heather Gatnarek.

The EMW Clinic said it has turned away 200 patients since Friday after doctors feared breaking the law and being charged with a crime.

“The bans at issue in this case criminalize a type of medical care that these doctors provide, they are the ones facing felony prosecution and loss of licensure,” Gatnarek said.

Assistant Attorney General Christopher Thacker argued the lawsuit should be thrown out on a technicality. Not one pregnant woman filed the suit.

“They’re asking this court to essentially rule the state version of Roe v. Wade and they’re asking it without even a Roe,” Thacker said.

He argued abortion is not protected by the state constitution.

However, a question on the November ballot suggests there might be. Voters will decide whether to amend Kentucky’s Constitution to say there is no state right to an abortion.

Tennessee voters did the same in 2014, overturning their supreme court.

“To ensure once and for all, we’re in state court now, that we don’t have an activist judicial decision at the state level that would invent a so-called right to abortion,” Family Foundation Director David Wells said.

Perry said he would rule on whether to approve a temporary pause on Kentucky’s abortion bans Wednesday night or Thursday morning.

All sides will be back in court next week to start hashing out the constitutional questions in detail.

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WAVE — Louisville and Southern Indiana's NBC affiliate. Follow us on Twitter & Instagram @wave3news.(WAVE)

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