Protesters and safety escorts for patients gathered last year outside EMW Women's Surgical Center in Louisville. (Photo by Deborah Yetter)

LOUISVILLE —With Kentucky’s abortion ban now in its 10th month, advocates have returned to court to argue that abortion is a right under the state constitution after the U.S. Supreme Court last year struck it down as a federal constitutional right.

But a February ruling by the Kentucky Supreme Court curtailed the ability of abortion rights lawyers to make their case in state court.

“A very narrow opening for a very narrow claim,” is how Samuel Marcosson, a constitutional law professor at the University of Louisville, described prospects for the case brought by Kentucky’s two abortion providers, Planned Parenthood and EMW Women’s Surgical Center.

The state Supreme Court ruling cut off the right of providers to challenge a law banning abortions after about six weeks of pregnancy, once cardiac signals from an embryo are detected. It does allow them to challenge the state’s “trigger law,” a measure enacted in 2019 to ban all abortions in Kentucky should the Supreme Court end the federal constitutional right to abortion.

Lawyers for the American Civil Liberties Union, representing Kentucky’s abortion providers, say they are seeking ways to bolster their case, possibly by adding an individual affected by the ban. That would give them a new opening to challenge the six-week ban as well as the trigger law.

“We are working on it,” ACLU lawyer Heather Gatnarek told Jefferson Circuit Judge Mitch Perry at an April 24 hearing he scheduled to determine how to proceed in light of the state Supreme Court decision.

But it’s been difficult, Gatnarek said, “to find a plaintiff with standing who is willing to be involved in issues like this.”

Christopher Thacker, representing Kentucky Attorney General Daniel Cameron, who is defending the laws, said he would object to adding a plaintiff at this point and said the only issue left is whether to uphold the trigger law.

“This case is simply about the trigger ban,” he said.

Perry gave parties two months to work on the case and asked them to return to court June 28.

Abortion is now banned or restricted in roughly half the states, according to the Kaiser Family Foundation, following the June 2022 U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 case that established pregnancy termination as a constitutional right.

Kentucky’s laws allow abortion only when it is deemed medically necessary to save the life of or prevent disabling injury to the patient. The laws provide no exceptions for fetal defects or pregnancies from rape or incest.

Abortion providers filed an immediate challenge last year after the laws took effect in June upon the U.S. Supreme Court ruling. In July, Perry ruled in their favor, temporarily barring enforcement of the Kentucky laws while the challenge proceeded in state court.

That allowed abortion services to briefly resume for about a week until a state Court of Appeals judge overruled Perry. The case eventually made it to the state Supreme Court, which declined to block enforcement of the laws and sent the case back to Perry to decide within new limits it imposed.

Patients still call

Meanwhile, demand for the procedure continues.

Patients still regularly contact Kentucky’s two abortion providers, both in Louisville, in hopes of scheduling the procedure or finding out where abortion care is available. Not all realize abortion is banned in Kentucky, though that is changing.

“There is a diminishing number of people that know don’t know it’s illegal,” said Jessica Carpenter, manager of Planned Parenthood’s health center. “A lot of the confusion comes in as to where they can access abortion in states surrounding us.”

EMW continues to field calls from patients although it has been unable to provide care, said co-owner Ona Marshall.

“We are still answering the phone and we are still hearing from people,” Marshall said. “We get calls every week and every month.”

Based on EMW’s number of patients in the year prior to Kentucky’s abortion ban, Marshall estimates about 3,000 people have been denied abortion services in Kentucky, many likely seeking care in other states.

Marshall called the restrictions “an affront” to those seeking to end a pregnancy. “It’s causing a lot of harm to people,” she said.

Abortion opponents, who celebrated the end of Roe v. Wade, see it differently.

“It’s saving lives of the unborn children,” said Addia Wuchner, executive director of Kentucky Right to Life, adding her organization values “the life of the mother and the unborn child.”

‘Absolutist positions, they don’t work in medicine’

But Dr. Anna Feitelson, a Louisville obstetrician and gynecologist, said absolute bans on abortion don’t take into account complications that may arise in a pregnancy, including fetal abnormalities that mean little chance of the fetus surviving, or conditions that could threaten the health of the pregnant patient.

“Too many people see this as black or white, right or wrong,” she said. “Absolutist positions, they don’t work in medicine. There are always going to be areas of gray.”

For example, Feitelson said one of her patients had a fetus with severe abnormalities that could not survive. She had to leave the state to end the pregnancy because Kentucky’s law provides no exceptions for such conditions.

“She had to drive to Illinois,” Feitelson said. “It was a highly desired pregnancy but the fetus was not going to survive.”

Another dangerous condition is when the patient’s water breaks too early in a pregnancy, causing the loss of amniotic fluid that surrounds and protects the fetus, increasing the risk of infection.

Some years ago, Feitelson said she had a patient who experienced that condition but tried to continue the pregnancy. She experienced severe infection and died.

Several lawmakers in Kentucky’s General Assembly, controlled by a Republican supermajority, expressed concern about the laws’ lack of exceptions for fetal anomalies or pregnancies from rape or incest.

But measures including one filed by Rep. Jason Nemes, R-Louisville, to allow abortions in such cases got no attention in the 2023 legislative session and died without hearings.

Supreme Court stopped short of ruling on abortion bans’ constitutionality

Advocates for abortion rights still hope to prevail in state court.

But they will have to overcome the ruling from the state Supreme Court that found abortion providers who brought the case lack “standing,” or the right to challenge the six-week ban.

The majority opinion by Justice Debra Lambert gave the abortion rights advocates limited standing to challenge the trigger law on grounds that it is unconstitutional.

In doing so, the court stopped short of ruling on whether the laws themselves are constitutional.

“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,” it said.

By reaching that conclusion, it saved the majority from having to reach any decision about the laws, said Marcosson, the constitutional law professor.

“I’m not surprised the court was anxious to find a way not to rule on the merits,” he said.

Marshall had a more pointed take. “They took the easy way out, which is really an affront to women, decency and personal liberty,” she said.

The decision drew several sharply worded dissents including one from Justice Angela McCormick Bisig who argued the majority erred by failing to evaluate whether the laws may be unconstitutional, saying justices were “remiss for refusing to do so.”

She also said the majority erred in denying standing to the abortion providers to challenge the six-week ban.

Bisig noted that Kentucky voters in November rejected a ballot measure that would have changed the state constitution to specifically state it includes no right to abortion.

And Bisig said the abortion providers might resolve the lack of standing by adding a patient as plaintiff to the case to challenge the six-week ban.

Overturning the trigger law, which bans all abortions from the moment of fertilization, could restore some access to abortion in Kentucky.

About 40 percent of abortions are performed by six weeks of gestation, according to the Kaiser Family Foundation.

Marcosson said the only way he believes the abortion providers could strengthen their right to challenge the six-week ban on abortions is by adding to their lawsuit a patient who was affected in some way.

“If they don’t,” he said, “the six-week ban is off the table.”