In the first major legal test for abortion access since voters resoundingly moved to protect abortion rights in the midterm elections, Kentucky’s Supreme Court will hear arguments Tuesday over whether the state’s near-total bans on abortion should remain in place while an overarching challenge to the constitutionality of the restrictions plays out in court. If the court reinstates a preliminary injunction against the bans, abortion access will immediately resume to pre-ban levels.
Oral arguments in Cameron v. EMW Surgical Center begin Tuesday at 10 a.m., one week after Kentucky voters rejected a constitutional amendment that would have encoded abortion restrictions into the state constitution and excluded the courts from deciding on abortion regulations in the state.
Each side has filed briefs and responses and will have 30 minutes apiece Tuesday to make their arguments before the justices. Legal experts estimate a ruling to come down between one and three weeks from Tuesday.
Here’s what to know about the case:
Abortion remains almost completely banned in Kentucky, with no exceptions for rape or incest under both a bar on abortions in pregnancies over six weeks and the state’s “trigger ban” that took effect in June after the U.S. Supreme Court overturned Roe v. Wade. Currently, abortions are only legal as a lifesaving intervention or to prevent the loss of a “life-sustaining” organ. In the rare permitted exceptions, abortions may only be performed by a licensed physician (some states permit abortion to be performed by nurse practitioners, physician assistants or certified nurse midwives).
The lawsuit over the preliminary injunction pits Kentucky’s attorney general, Daniel Cameron (R), against Kentucky’s two remaining abortion providers, EMW Women’s Surgical Center and Planned Parenthood. The providers, both in Louisville, were forced to cease providing abortions in August when a Kentucky appeals court reinstated the state’s two abortion bans. They contend that the bans are unconstitutional.
“In absence from action from Congress, we’ve been left to turn to the Kentucky Constitution and sue in state court under [Kentucky’s constitutional] right to privacy and self-determination,” said Samuel Crankshaw, a spokesperson for the ACLU of Kentucky, which is arguing on behalf of EMW and Planned Parenthood.
Cameron, the staunchly antiabortion attorney general, successfully fought for the right to keep defending Kentucky’s abortion bans after Democratic Gov. Andy Beshear said his administration was declining to further defend the restrictive laws. Chief among Cameron’s arguments is that regulating the state’s abortion laws should fall to the state legislature and should not be determined by court decisions.
Reached for comment Monday, a spokesperson for Cameron’s office referred to his statement released the day after Amendment 2’s defeat in which he argued the election result “does not change our belief that there is no right to abortion hidden in the Kentucky Constitution.”
On Nov. 9, Cameron filed a motion with the state Supreme Court, arguing that the election result should have no bearing on the justices’ decision, similar to the argument he made in his opening brief: “The Court interprets the words that Kentuckians ratified in 1891, not the intended effect of the words that they failed to ratify in 2022.”
If the court were to rule against re-enjoining the bans — the ruling sought by Cameron — nothing would change in the near term: Kentucky abortions would remain banned in all but lifesaving situations, and providing an unlawful abortion would remain a felony punishable by up to five years in prison.
If the court were to rule in favor of appellees EMW and Planned Parenthood, abortion access in Kentucky would immediately be restored to pre-ban levels that allow elective abortion up to 15 weeks and ease restrictions on access to medical abortions.
“Even if we’re able to get back some forms of services, it will only be able to get us back to a 15-week ban,” said Tamarra Wieder, Kentucky director for Planned Parenthood Alliance Advocates. Wieder noted that before the 15-week abortion ban enacted in April (and later supplanted by the six-week ban and trigger ban), abortion in Kentucky was available up to 20 weeks, or midway through the second trimester of pregnancy.
Whichever way the court rules, the outcome will remain in effect until the overarching case challenging the constitutionality of the bans is resolved.
If it had passed, Amendment 2 would have “stopped this case cold,” said Samuel Marcosson, who teaches constitutional law at the University of Louisville Brandeis School of Law.
The case would have been dismissed or withdrawn in the event of a successful “Yes” vote on the amendment; Marcosson said EMW and Planned Parenthood’s whole basis for the case is that the Kentucky Constitution protects the right to choose — “A Kentucky version of Roe v. Wade.”
“Amendment 2 would have made it explicit that there is no right, and it would have left no room for the supreme court to interpret the constitution in the way the ACLU is urging,” Marcosson said.
Also consequential were the results from Kentucky’s judicial races for Supreme Court seats. Marcosson and Planned Parenthood’s Wieder noted the defeat of Supreme Court judicial candidates who ran on overtly partisan and antiabortion platforms despite the nonpartisan nature of the office — including state Rep. Joseph Fischer (R), who wrote the current “trigger ban.”
“The judicial election results are an important factor bubbling beneath this issue,” Marcosson said. The fact that the incumbent in Fischer’s race, Justice Michelle Keller, held on to her seat in a conservative district “could send as much of a message as Amendment 2 did that the court can make whatever decision they feel is right without feeling political pressure.”
How much each side references the results from last week’s election in Kentucky will become clearer after the oral arguments Tuesday. Marcosson expects the ACLU lawyers to portray Cameron’s insistence that the justices’ deliberations disregard the election results as a bad-faith argument.
“The ACLU may take the view that it’s a ‘Heads, I win; tails you lose’ situation, where if they won on Amendment 2 the ACLU fails, and if Amendment 2 wins the ACLU still fails,” he said.
Marcosson anticipates that Cameron will press his argument that the results don’t matter because the office does not believe the Kentucky Constitution protected the right to choose before Amendment 2, which would have only made that argument explicit in state law.
“I don’t know how the justices will factor [the election] in, but I will be surprised if they don’t at least ask some probing questions about the meaning of Amendment 2,” Marcosson said. “We may get from that clues on where they may be coming from.”
The overarching showdown over the long-term future of abortion in Kentucky is still working its way through the courts, where the same parties will re-up familiar arguments.
Antiabortion advocates, with an ally in Cameron, look to retain the gains they have made this year in restricting abortion access to its current level. Supporters of abortion rights, meanwhile, hope to notch a victory in the form of a legal ruling that establishes Kentucky’s version of Roe v. Wade under the state constitution, which Marcosson notes takes a broader view of privacy than the federal Constitution.
As the broader challenge to Kentucky’s bans plays out in Circuit Court, Marcosson said, appeals to the state’s highest court are all but inevitable; both parties anticipate squaring off in Kentucky Supreme Court once again — with even higher stakes.