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Al Cross: Voters have their say on abortion; now the courts can, then the legislature

“It has been said that democracy is the worst form of government, except for all those other forms that have been tried from time to time.” –Winston Churchill, 1947

Democracy has difficulty with issues of morality. Perhaps the greatest examples are Prohibition and abortion.

Prohibition still exists under local option, but abortion is not an issue on which voters usually get to make decisions. That’s not how representative democracies normally work. But this month, voters in Kentucky got a say, and now the normal decision-makers – legislators and judges – should pay close attention to them.

The question on Tuesday’s ballot was whether the state constitution should say that it shall not “be construed to secure or protect a right to abortion or the funding of abortion.” In other words, courts should not be able to find those hard, life-and-death things in the somewhat fuzzy principles of the constitution – and thus leave in place one of the nation’s strictest bans on abortion.

Al Cross (Twitter @ruralj) is a professor in the University of Kentucky School of Journalism and Media and director of its Institute for Rural Journalism and Community Issues. His opinions are his own, not UK’s. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010.

NKyTribune is the anchor home for Al Cross’ column. We offer it to other publications throughout the Commonwealth, with appropriate attribution.

By about 5 percentage points, Kentucky voters said no to that idea. So, next Tuesday, the state Supreme Court will hear oral arguments in a lawsuit aimed at getting a decision that could be Kentucky’s version of Roe v. Wade, the 1973 case that created a national right to abortion.

That’s exactly what Republican state Rep. Joseph Fischer of Fort Thomas (who lost a race for the Supreme Court on Tuesday) was trying to prevent when he sponsored the 2021 bill that put the constitutional amendment on the ballot. And it was Fischer who sponsored the “trigger law” that went into effect when the U.S. Supreme Court overturned its landmark decision.

The trigger law bans abortion unless needed to save or prevent “substantial risk” to the woman’s life, or prevent permanent damage to a life-sustaining organ. It has no exceptions for rape or incest, which were once typical exceptions for most Republicans, or for threat to the woman’s health or cases of severe fetal abnormality.

Another law Fischer supported also passed in 2019, bans abortion if fetal cardiac activity can be detected. That usually occurs in the sixth week of pregnancy, which is measured from the end of the last menstrual period, so at that point some pregnant women may not realize they are carrying a fetus.

In voting against Fischer’s amendment, Kentuckians, in effect, voted against Fischer’s laws. Most don’t like abortion, but they want more reasonable exceptions and boundaries.

If voters had passed the amendment, the Supreme Court case would have been moot.

Now the court will decide whether to reinstate the injunction that Jefferson Circuit Judge Mitch Perry issued. It blocked Fischer’s laws until a lawsuit brought by the state’s two abortion clinics could be tried, but Court of Appeals Judge Larry Thompson of Pikeville blocked the injunction, and a fractured Supreme Court let Thompson’s order stand.

In his injunction, Perry said that by passing the trigger law, the legislature “impermissibly delegated its legislative authority to a federal body,” and that the six-week ban is constitutionally suspect because the state Supreme Court has interpreted the first three sections of the state constitution to “protect an individual’s right to liberty and self-determination.”

Those sections, written in 1891, read in part: “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Second: The right of worshipping Almighty God according to the dictates of their consciences. Third: The right of seeking and pursuing their safety and happiness… Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority… All men, when they form a social compact, are equal…“

Perry also made a practical point: The six-week ban would “potentially obligate the state to investigate the circumstances and conditions of every miscarriage that occurs in Kentucky. This would lead to an unprecedented level of intrusion and invasiveness . . . ”

And he cited Section 5 of the constitution, which guarantees religious freedom, and said the idea that human life begins at conception “is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views…” Several Jewish mothers in Louisville have filed suit against the law on those grounds.

If the state Supreme Court adopts Perry’s approach, the legislature can draw the line somewhere else, perhaps at the 15th week of pregnancy. That’s what Mississippi did in the case that led the U.S. Supreme Court to overturn Roe v. Wade, leaving abortion regulation to the states. Then the courts will have another say, and the legislature may propose another amendment to redefine our basic principles. Kentucky’s abortion debate may last a long time.

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