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Abortion ban headed for high court in Kentucky, as constitutionality argument hinges on November ballot measure

Josh James

The legal tug-of-war over abortion in Kentucky continues, with the ACLU now taking its case against the state’s ban on abortions to the commonwealth’s high court.

Kentuckians seeking an abortion have had to contend with on-again, off-again rulings on abortion access in recent weeks.

The latest legal decision leaves the state effectively without abortion access while the state Supreme Court awaits word from Attorney General Daniel Cameron, who has until Friday to respond.

But abortion rights advocates have their eye on November. That’s when Sam Crankshaw with the ACLU says Kentucky voters will have the option of explicitly ruling out abortion protections in the state constitution.

“No matter what happens in court, the next step is also making sure that Kentuckians know the implications of that amendment and vote on it.”
Sam Crankshaw, ACLU of Kentucky

Abortion rights opponents, meanwhile, are hoping the same voters who sent GOP supermajorities to the statehouse will codify the amendment this fall.

The defeat of a similar amendment in Kansas has energized Democrats — though there are some differences between the defeated Kansas measure and the question that will go before Kentucky voters.

The Kansas amendment would have written language into the state’s constitution, saying it does not “create or secure a right to abortion.” That line echoes language in Kentucky’s proposed amendment, which states that nothing in the constitution shall be “construed to secure or protect” that right.

But the amendment Kansans voted down went further, specifically granting powers to state legislators to pass laws regarding abortion, including laws that “account for the circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.”

Kentucky’s ballot amendment leaves that language out, and includes an opening phrase abortion rights advocates are likely to consider loaded: “To protect human life…”

State courts have objected to overly broad language in ballot measures in the past, most recently voiding a crime victims’ rights bill known as Marsy’s Law in 2019 over those concerns. Lawmakers were forced to redo the bill, putting the entire text on the ballot.

But this measure will be a different type of test, as the full amendment text is only one line long — even if the implications are far-reaching.

Josh James fell in love with college radio at Western Kentucky University's student station, New Rock 92 (now Revolution 91.7). After working as a DJ and program director, he knew he wanted to come home to Lexington and try his hand in public radio.