The court, which was weighing challenges to the state’s near-total ban and a separate one that outlaws abortion after the sixth week of pregnancy, sent the case back to a lower court for further consideration of constitutional issues related to one of the bans.
The court weighed in on the issue after Kentucky voters last year rejected a ballot measure that would have denied any constitutional protections for abortion. The justices heard arguments in the case a week after the November midterm election, and activists on both sides had anxiously awaited the ruling. The Republican-led Legislature passed both of those laws.
The justices ruled on narrow legal issues Thursday. They left unanswered the larger constitutional questions about whether access to abortion should be legal in the Bluegrass State.
“To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us.” Deputy Chief Justice Debra Hembree Lambert wrote. “Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.”
Last month, the South Carolina Supreme Court struck down a ban on abortion after six weeks, ruling that it violated a state constitutional right to privacy.
In Kentucky, the challenges revolve around the state's near-total trigger law ban and the separate six-week ban. The trigger law was passed in 2019 and took effect when the U.S. Supreme Court overturned Roe v. Wade. It bans abortions except when they’re carried out to save the life of the mother or to prevent disabling injury. It does not include exceptions for cases of rape or incest.
In July, a Louisville judge, Mitch Perry, halted enforcement of the bans because he found that they likely violated the state constitution’s rights to privacy and self-determination. He said it wasn’t the court’s role to determine whether the state constitution guarantees the right to abortion, but it is its role to decide whether the new bans violate constitutionally guaranteed freedoms.
But the state Court of Appeals reinstated enforcement of the bans and the state Supreme Court opted in August to keep them in place while it reviewed the case.
On Thursday, the high court ruled that the two Louisville abortion providers that challenged the near-total and six-week bans on the argument that they violated patients' constitutional rights lacked the “third-party standing" to do so.
Lambert, though, wrote that the abortion providers have “first-party” constitutional standing to challenge the trigger ban, specifically. As a result, the justices sent that part of the case back to the circuit court in Louisville to review the plaintiffs' claims that the trigger ban violated the state constitution.
Thirteen states have current bans on abortion at all stages of pregnancy, including Wisconsin, where there’s a legal question over which law is in effect but where clinics have shut down. Bans and tight restrictions are currently on hold because of court action in at least six states.