Kentucky Lawmakers Seek Exclusive Control Over Residents’ Reproductive Rights

A Kentucky ballot measure, Amendment 2, would bar state courts from considering the constitutionality of abortion.

Counter-protestors gather in front of a rally encouraging voters to vote yes on Amendment 2, which would add a permanent abortion ban to Kentuckys state constitution, on the steps of the Kentucky State Capitol in Frankfort, Kentucky, on October 1, 2022. - Since the Supreme Court in June overturned the constitutional right to abortion, restoring states' ability to ban the procedure, the issue has become a major ballot question. Only four states have decided to hold referendums exclusively on abortion, decoupling the issue from platforms and political parties, and opening the door to citizens who are not very political to get involved in what is, for them, a matter of "values." (Photo by Stefani Reynolds / AFP) (Photo by STEFANI REYNOLDS/AFP via Getty Images)
Protesters encouraging voters to vote no on Amendment 2 in Frankfort, Ky., Oct. 1, 2022. Photo: Stefani Reynolds/AFP via Getty Images

Kentucky state Rep. Nancy Tate, the GOP leader of the General Assembly’s Pro-Life Caucus, gathered with her colleagues for a press conference at the state capitol in late October to decry the alleged “misinformation” they say has plagued the campaign against a proposed constitutional amendment on the midterm ballot. Known as Amendment 2, the measure would amend the Kentucky Constitution to say that nothing in the document may be construed to protect a right to abortion. “This is a massive information campaign that is misrepresenting the intent of this amendment and scaring Kentucky’s women,” Tate said.

Amendment 2 is one of five abortion-related measures on statewide ballots this month. Measures in California, Michigan, and Vermont would protect access. A measure in Montana that purports to protect babies “born alive” after an abortion, which is not a thing, has the state’s medical professionals up in arms about its potential consequences. The closest parallel to what Kentucky is asking of voters is a similar measure that appeared on the primary ballot in Kansas in August, which also sought to write reproductive rights out of the state constitution. It was roundly rejected by voters.


Abortion Faces Early Electoral Test in Kansas — but Misinformation Is Rampant

In Kansas, the run-up to the primary was flooded with misinformation. Supporters of the so-called Value Them Both Amendment insisted that stripping the state constitution of abortion rights wouldn’t result in a ban on abortion, while voting against the measure would deregulate abortion in the state, allowing clinics to operate without oversight. Neither claim was accurate. Then, on the eve of the primary, Kansas voters received a text message falsely stating that voting yes for the amendment would actually preserve “choice on reproductive rights.” The messages were unattributed but reportedly linked to a former far-right Kansas member of Congress and funded by a Catholic advocacy group.

According to Tate and her colleagues, the misinformation in Kentucky is coming from the “vote no” camp, a coalition of groups organized as Protect Kentucky Access. The lawmakers have bristled at the fact that the coalition would even suggest that the amendment would ban abortion in the state. All it would do, they counter, is vest the general assembly with sole discretion over whether the people of Kentucky retain any reproductive rights. “It will keep state judges in their lane of interpreting the law and not inventing new laws and new rights that the constitution does not speak of,” Tate said. Attempting to back her up, state Sen. Whitney Westerfield seem to prove their opponents’ point. “This amendment does not ban abortion,” he said. “And if it did, I’d vote for it!”

In reality, anti-abortion lawmakers are the ones purveying misinformation. False claims are baked into the language of the amendment, which calls for a ban on taxpayer funding for abortion — something that isn’t happening and isn’t even on the table. And passage of Amendment 2 would almost certainly shut the door on abortion rights in Kentucky. Over the last three years, lawmakers — including Tate and Westerfield — have voted for legislation that severely restricts or bans abortion, except in narrow and ill-defined circumstances.

Those laws took effect after the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, which demolished nearly a half-century of constitutional protection for abortion. The American Civil Liberties Union and the local Planned Parenthood affiliate filed suit to challenge the commonwealth’s abortion bans, and on November 15, the Kentucky Supreme Court is slated to consider whether they should be blocked while the lawsuit contesting their constitutionality is pending. But if Amendment 2 passes on November 8, the question of whether the bans infringe on Kentuckians’ rights will be stripped from the court’s jurisdiction, leaving state lawmakers with exclusive control over reproductive rights.

Aside from the claims of misinformation, there are subtle — and not so subtle — differences between the constitutional amendment campaigns in Kansas and Kentucky. While registered Republicans make up the largest voting group in Kansas, Kentucky boasts slightly more registered Democrats, and slightly more registered women than men. Whether and how these elements will come in to play, of course, remains to be seen.

But the biggest difference, says Tamarra Wieder, Kentucky director of Planned Parenthood Alliance Advocates, is that “Kansas did not have the ban already.” In 2019, the Kansas Supreme Court recognized that the state Constitution contained a right to reproductive autonomy, meaning residents did not lose access to abortion in the wake of the Dobbs ruling. The constitutional amendment was a failed attempt to overturn the court’s decision.

Kentucky residents have been living under a ban — and all its consequences — for months now. “This is something that’s already affecting Kentuckians. People with complicated pregnancies are having to have plan B doctors in other states or care for miscarriages [in] other states,” Wieder said. “I mean, this is no longer another state’s problem.” And it’s heightened the stakes for this election. “People are feeling what it’s like to live in a post-Roe world,” she said. “This is a real situation that’s happening here.”

Jace Peters-White of Lexington, center, joined others protesting at the Kentucky state Capitol in Frankfort, Ky., on Wednesday, April 13, 2022.  Demonstrators' chants echoed through Kentucky's Capitol as Republican lawmakers started pushing aside the Democratic governor's veto of a bill putting new restrictions on abortion. (Ryan C. Hermens/Lexington Herald-Leader via AP)

Protesters at the Kentucky state capitol in Frankfort, Ky., on April 13, 2022.

Photo: Ryan C. Hermens/Lexington Herald-Leader via AP

Absolute and Arbitrary Power

Legislative assaults on reproductive rights in Kentucky began in earnest after the 2016 election. The state House lurched to the right for the first time in decades, giving the Republicans control of the Legislature as well as the governor’s office. The 2019 legislative session would be particularly consequential.

That January, lawmakers introduced a bill that would ban all abortion after about six weeks, a point at which most people don’t even know that they’re pregnant, and another that would ban abortion altogether in the event that federal abortion rights should fall, what’s known as a trigger law.

In February 2019, Tate stood on the House floor and implored her colleagues to pass the trigger law. She thanked the men in the chamber for accepting the “role as the protector of life” amid criticisms of their anti-abortion positions and urged women to realize their role as childbearers. “Do not hesitate to encourage women to accept the graces that have been bestowed on them by their creator,” she said.

Members of the Democratic minority tried to push back. State Rep. Mary Lou Marzian looked frustrated. Of all the “sanctimonious, arrogant legislation that gets filed every year,” she said, “I believe this is the one that is the most heinous.” She lambasted legislators for interfering in the private medical decisions of Kentucky residents. But if this was what the majority was going to do, “if we’re going to be the guardians of women’s uteruses, we need to go all in,” she said, before offering a satirical floor amendment that would require all Kentucky women of childbearing age to file a monthly “notarized statement” with the state regarding their pregnancy status.

The symbolic amendment failed, and the legislation was readily passed in both chambers. The six-week ban similarly sped through the legislative process (Marzian attempted to amend it with language that would make it a crime punishable by 10 years in prison for any man “who ejaculates without intending to procreate”), and both measures were signed into law that March. Each contained a vague exception for the health of the pregnant person, but none for rape, incest, or fetal abnormality.

While abortion may not be mentioned by name in the constitution, it was legal in Kentucky at the time of ratification.

While the trigger law would remain dormant, the ACLU quickly filed suit in federal court to block the six-week ban, which, at least at the time, was a clear violation of constitutional protection for abortion up until viability, roughly 23 to 24 weeks. The federal district court promptly blocked the law for as long as the litigation was pending.

But the Legislature was not done. In March 2021 it passed the language that would become the Amendment 2 ballot measure. The following spring, it passed House Bill 3, an omnibus abortion bill that contained a 15-week ban and a host of onerous administrative requirements for providers, including measures that could put patient privacy at risk.

Although Democratic Gov. Andy Beshear initially vetoed that bill, the Legislature was able to override it, and because the law was deemed an emergency measure, it took effect immediately. Although Planned Parenthood and the ACLU sued in federal court to block its enforcement, there was a weeklong lag before the court ruled in their favor. In the interim Kentucky became the first state in the nation to effectively ban abortion.

It was just the start of a whiplash roller coaster ride for Kentuckians seeking abortion care. The Supreme Court’s June 24 ruling in Dobbs dissolved the federal court’s stay of the six-week ban, paving the way for both the ban and the dormant trigger law to take effect.

Days later, the ACLU and Planned Parenthood, representing the state’s two abortion providers, took their fight to state court, challenging the bans as unlawful under state constitutional protections. The case eventually made its way to the Kentucky Supreme Court, which set oral arguments for November 15 on the question of whether the bans should be blocked while the challenge moves forward.

In briefs before the high court, Kentucky Attorney General Daniel Cameron argues that since the word “abortion” doesn’t appear in the commonwealth’s constitution, it cannot be interpreted to protect a right to reproductive autonomy. He argues that finding such a protection would interject the court into the lawmaking process and usurp the Legislature’s right to set state policy.

In response, the clinics have noted that Sections 1 and 2 of the Kentucky Constitution provide strong protection of individual rights. “All men are, by nature, free and equal, and have certain inherent and inalienable rights,” reads Section 1, including the right to defend their “lives and liberties” and the right of “seeking and pursuing their safety and happiness.” And Section 2 slams the breaks on government overreach: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

The clinics argue that the Kentucky Supreme Court has determined that the commonwealth’s constitution provides an “expansive” right of privacy and “self-determination,” broader than what’s contained in the U.S. constitution. And just because the U.S. Supreme Court ruled that the federal constitution doesn’t protect abortion doesn’t mean the same applies to the Kentucky constitution — or that state lawmakers, and not judges, have the right to decide the issue.

They also note that while abortion may not be mentioned by name in the state constitution, it was legal in Kentucky at the time of the constitution’s ratification.

It’s Happening Here

If the Kentucky constitution didn’t provide protection for reproductive rights, then it’s hard to see why Amendment 2 would be necessary. It’s also hard to square the lawmakers’ insistence that passing the amendment would not result in an abortion ban given that banning abortion is what they have been trying so hard to do, even repeatedly eschewing exceptions that would protect victims of rape or incest. At the October press conference, Tate intimated that she found such exceptions objectionable. “Some of my best friends were conceived from rape and incest,” she told reporters. “And it absolutely breaks their heart when they hear from the public position that their life is not valued.”


For Abortion Rights, Could Kentucky Be the Next Kansas?

In railing against the alleged misinformation spread by Protect Kentucky Access, Tate spiraled into a misinformation stream of her own. She alleged that “Kentucky Planned Parenthood” had “raked in” $191 million from performing abortions between 2020 and 2021 (literally impossible given that the clinic in Louisville provided just 368 abortions in 2020 and 626 in 2021). She also claimed that big out-of-state money was funding the coalition’s campaign in an effort to make the commonwealth a hub for abortion in the United States (while the Protect Kentucky Access has received large donations from Planned Parenthood and the ACLU, the majority of its donations have come in smaller amounts from commonwealth residents; on the other hand, the “vote yes” campaign, Yes for Life, has received most of its money from anti-abortion organizations and religious groups, including the Catholic church and Kentucky Baptist Convention).

A reporter at the press conference asked Tate about misinformation coming from the “Yes for Life” campaign, specifically an ad that claimed Amendment 2 was necessary to stop taxpayer-funded, late-term abortion. “‘Radical, out-of-state activists want to spend your tax dollars on late-term abortions, even up to the moment of birth,’” the reporter said, quoting the ad. “Is there any evidence for that?”

“Well, I think we can look across the nation,” Tate began. “We can look at Washington, D.C., and we can see where infanticide — infanticide! — is being pushed, including infanticide up to 28 days after birth.”

The Louisville Courier-Journal sought to set the record straight: Tate’s infanticide claim appeared to have come from a debunked internet rumor. “They know that there is no such thing as elective abortion up to birth — and up to 28 days after birth, according to Rep. Tate,” Democratic state House Minority Leader Joni Jenkins told the paper. “But they lie about it anyway.”

“I think they’re starting to realize they went too far.”

Kaitlyn Soligan Owens, communications director for Protect Kentucky Access, said that Kentuckians are wary of government overreach, and the extreme nature of the proposed amendment has fired up voters across the commonwealth. She said the no campaign has feet on the ground in nearly all of Kentucky’s 120 counties. “This is very important to the people of Kentucky,” she said. “This amendment is very extreme, and people across the state have recognized that since it was introduced.”

During Kentucky’s annual Fancy Farm picnic — the August kickoff to election season, where residents gather to hear political stump speeches — Wieder said a long line of folks formed at the Protect Kentucky Access table to gather literature about the amendment, sign up to volunteer, and share their stories. Many of them were Republicans. “I mean, they were crossing over political boundaries to have conversations, to share their stories, to say why they’re afraid for their daughters, themselves,” she said. “Many shared pre-Roe abortion stories of friends that they have lost.”

Wieder said she thinks that’s at least in part why Tate and her allies seemed so scattered during the October press conference. “I really thought that they were scared, that they don’t have anywhere to go, that they probably have the same polling that we do: that abortion is popular in Kentucky, that people do not want it to be banned or inaccessible,” she said. “I think they’re starting to realize they went too far.”

Amid all the misinformation, Owens said there is one thing lawmakers have said that is true: They want to control people’s bodies. “What they have said, over and over again, verbatim, is ‘we believe this decision’ — this medical decision — ‘belongs in the hands of state legislators,’” she said. “They believe it belongs to them.”

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