Profiling Kentucky’s abortion question, amendment two

The issue is highly relevant with the state supreme court set to weigh in on a Louisville abortion case.
Published: Oct. 30, 2022 at 10:48 PM EDT
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LOUISVILLE, Ky. (WAVE) - For decades Kentucky lawmakers could add limits to abortion that stopped at one clear bright line.

They could not ban the procedure completely.

That changed overnight after the U.S. Supreme Court junked Roe v Wade and decided abortion is no longer protected by the U.S. constitution.

Now Kentucky voters have a choice to make on election day about abortion.

The U.S. Supreme Court’s decision to overturn Roe versus Wade switched on a Kentucky law that bans nearly all abortions in the state.

But that trigger ban was immediately challenged as lawyers opposing it said Kentucky’s constitution protects abortion.

Now voters are being asked to weigh a 25 word amendment that would declare abortion out of bounds.

“No Kentucky court will ever be able to fashion an explicit or implicit right to abortion from the language of our constitution,” said Republican State Representative Joe Fischer in 2019.

This is how we got here.

“There will be no Roe v Wade decision in Kentucky. The regulation or the elimination of abortion will be vested permanently in the General Assembly,” said Fischer, if the amendment is approved.

The debate was fierce.

“It is not our position to dictate to what a woman and a doctor decide is right, otherwise, let me come to your doctor appointments,” said Democratic State Representative Pamela Stevenson.

“What are you afraid of, this is not a bill to outlaw abortion, this is not a bill that restricts abortion, this is a bill that leaves it up to the voters of the Commonwealth of Kentucky,” said Republican State Representative Matt Lockett.

“I get angry when I hear these assaults from a body that thinks women are so stupid and so ignorant that we can’t make up our own minds about when and whether to complete a pregnancy,” said Democratic State Representative Mary Lou Marzian.

But we don’t know if any lawmaker imagined we’d actually be here.

“I don’t think the Supreme Court is going to overturn Roe v Wade, I just don’t think they will,” said Republican State Representative Jim Gooch.

“The decision on abortion is if you believe that there are two lives it isn’t really about choice it’s about two lives having rights and trying to figure that out,” said Republican Senator Rand Paul.

“Stand up fight back, stand up, fight back,” chanted a crowd outside Louisville’s federal courthouse the day Roe was overturned.

The U.S. Supreme Court’s decision scrapping Roe v Wade triggered an automatic abortion ban in Kentucky. It shut down the state’s two clinics in Louisville. But a state court challenge was filed arguing abortion is protected by Kentucky’s founding document.

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

A Louisville judge twice ruled in favor of abortion but a final decision has not been made because the case has been appealed to the Kentucky Supreme Court. It has scheduled a hearing after the election. That means Kentucky voters now hold what could be the final say on whether abortion is protected under state law.

“This is a chance to make something of a statement and to kind of prevent us from getting into a state court decision like Roe was at the federal level,” said Kentucky Catholic Conference Director Jason Hall.

His is one of the groups asking voters to vote yes on amendment two.

“It does prevent Kentucky courts from finding a right to abortion in the state constitution,” explained Hall.

Hall said a yes vote would keep abortion out of the courts and out of judicial races. It would allow elected lawmakers to be the final arbiters of abortion policy, not elected judges.

“Before the Dobbs decision we wanted to do this because some other states had seen state supreme courts cases that had extended the right to abortion,” said Hall.

Take Tennessee for example. It’s supreme court found a right to abortion in their state constitution two decades ago. Voters amended the document in 2014 to say there is no right to abortion. The procedure is now almost entirely banned.

“These difficult questions we need to debate and sort out and draw the lines that we can come to through the democratic process and amendment two will keep it in that arena in the political arena,” said Hall.

“Kentucky is a state that has already lost legal access to abortion in almost all cases, and if amendment two is passed that will lead to all those extreme restrictions becoming permanent,” said no campaign manager Rachel Sweet.

She wants voters to reject the amendment. She said voting it down would not open the floodgates to abortions.

“This does not necessarily mean that there is going to be an overnight change to the state of abortion rights and access in the commonwealth,” said Sweet.

Instead, she said, it will allow the courts to continue their work interpreting the state constitution now that abortion is fully up to states.

“State constitutions are really the only thing that is standing between the people and a total ban on abortion with no exceptions,” said Sweet.

She said allowing courts to keep weighing in will serve as a check on elected lawmakers. They can still pass laws on abortion, but the courts can determine whether those laws violate Kentucky citizens’ rights.

“The stakes have definitely changed since legislators decided to put this measure on the ballot and this is really an opportunity for Kentuckians to decide which direction we want to go in,” said Sweet.

The state supreme court justices will be watching. What voters choose on amendment two will determine whether they have any work to do.

The amendment would also ban taxpayer money being spent on abortions.

Kentucky would cover 27 percent of the cost of an abortion procedure for low income patients getting health care through Medicaid.

However abortions are only allowed if the woman’s health is at risk, or if the pregnancy was the result of rape or incest.

State Medicaid reports show it has been 16 years since any abortion was covered under Medicaid.