Restrictions

On June 24, 2022, Kentucky began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy,^[1]Ky. Rev. Stat. § 311.772. Governor Andy Beshear (@GovAndyBeshear), Twitter (June 24, 2022, 10:41 AM), twitter.com/GovAndyBeshear/status/1540344257814437888?s=20&t=v1z2jYk2jfRQZYbmv1rktg. following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019). The trigger ban was subject to an injunction,^[3]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, RO No. 22-CI-003225 (Jefferson Cir. Ct., Div. 3, Jun. 29, 2022); EMW Women’s Surgical Ctr., P.S.C. v. Cameron, RO No. 22-CI-003225 (Jefferson Cir. … Continue reading but the state Court of Appeals has since allowed the Attorney General to enforce the trigger ban.^[4]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 2022-CA-0906-I (Ky. Ct. App., Aug. 1, 2022). This order is currently being appealed.^[5]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 2022-SC-___ (Ky. Aug. 2, 2022) (plaintiff motion for emergency relief). However, in November 2022, voters rejected an amendment to the state constitution, which specified that the constitution does not protect abortion or require funding for abortion care.^[6]Act proposing an amend. to the Const. of Ky. relating to abortion, Act 174, 2021, apps.legislature.ky.gov/law/acts/21RS/documents/0174.pdf. Lindsay Whitehurst, Abortion rights protected in Michigan, … Continue reading

Kentucky has not repealed other laws related to abortion. Kentucky law generally retains gestational bans at six weeks LMP, 15 weeks LMP, and post-viability. ^[7]KY. REV. STAT. § 311.7705; H.B. 3. 2022 Leg., Reg. Sess. (Ky. 2022), amending KY. REV. STAT. §§ 311.781-783; KY. REV. STAT. § 311.780. A state Court of Appeals has allowed the six-week ban to take effect^[8]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 2022-CA-0906-I (Ky. Ct. App., Aug. 1, 2022) and this order is currently being appealed.^[9]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 2022-SC-___ (Ky. Aug. 2, 2022) (plaintiff motion for emergency relief). State law also prohibits D&E, D&X, and saline instillation procedures,^[10]KY. REV. STAT. §§ 311.787(2), 311.765, 311.770. and generally prohibits abortions sought for reasons of sex and race selection, and the diagnosis or potential diagnosis of disability.^[11]Id. § 311.731(2). Each of these method and reasons bans, except for the D&X ban, is currently enjoined.^[12]See EMW Women’s Surgical Center, P.S.C. v. Friedlander, 960 F.3d 785 (6th Cir. 2020) (striking down D&E ban), cert. granted only for question concerning Attorney General’s power to … Continue reading Kentucky continues to include requirements that pregnant people must undergo a mandatory twenty-four-hour waiting period, biased counseling, and an ultrasound;^[13]KY. REV. STAT. §§ 311.725, 311.727. prohibitions on public funding,^[14]Id. § 311.715. and private insurance coverage.^[15]Id. § 304.5-160. The state continues to require that a parent, legal guardian,^[16]Id. § 311.732(2)(a). or judge ^[17]Id. § 311.732(2)(c). consent to a minor’s abortion.

Kentucky retains targeted regulation of abortion providers (TRAP) laws include requirements related to facilities,^[18]KY. REV. STAT. §§ 216B.015, 216B.0431, 216B.990. transfer agreements,^[19]KY. REV. STAT. § 216B.0435. and reporting.^[20]Id. § 213.101. Kentucky law continues to restrict the provision of abortion care to licensed physicians^[21]Id. § 311.750. and still restricts providers from using telemedicine for the provision of abortion care.^[22]Id. § 311.728. Providers who violate Kentucky’s abortion restrictions may face civil and criminal penalties.^[23]See, e.g., id. §§ 311.772, 311.990, 311.782, 213.101.

State Protections

Kentucky law does not include express constitutional or statutory protections for abortion. To the contrary, Kentucky’s policy preference is to ban abortion to the fullest extent of the law: “Children, whether born or unborn, are the greatest natural resource in the Commonwealth of Kentucky.”^[24]H.R. 96, 152nd Gen. Assemb., Reg. Sess. (Ky. 2018).

Post-Roe Prohibitions

In 2019, Kentucky enacted a trigger ban,^[25]KY. REV. STAT. § 311.772. which is currently in effect.^[26]EMW Women’s Surgical Ctr., P.S.C. v. Cameron, No. 2022-CA-0906-I (Ky. Ct. App., Aug. 1, 2022). The state repealed its pre-Roe ban in 1974.^[27]1974 Ky. Acts 487, 889 (“KRS 435.040 and 436.020 are repealed.”).

Conclusion

Now that the Supreme Court has overturned Roe, Kentucky argues that the state can enforce its trigger ban to prohibit abortion. However, in November 2022, voters rejected Prop 2, which would have specified that the state constitution does not protect abortion rights.