Kentucky ended virtually all in-state abortions on Wednesday, enacting a sweeping law that bans abortions after 15 weeks of pregnancy, restricts minors’ access to the procedure, and cracks down on medication abortions. It’s now the state with the harshest abortion restrictions in the United States.
The new law, which goes into effect immediately, will force the state’s two remaining abortion clinics in Louisville to close due to onerous new requirements on doctors, forcing Kentuckians to look elsewhere for abortion care.
And it comes as Republican-led legislatures across the country are passing seemingly unconstitutional, draconian anti-abortion laws in anticipation of a coming Supreme Court decision widely expected to eliminate Americans’ right to an abortion. Oklahoma, for example, recently passed a law similar to Kentucky’s that imposes a near-total ban on abortions except in cases where the pregnant person’s life is in danger — though it isn’t slated to go into effect for another few months.
Kentucky Gov. Andy Beshear, a Democrat, vetoed the bill last week, arguing that it’s likely unconstitutional, due to the Supreme Court’s 1973 decision in Roe v. Wade, which recognized a pregnant person’s fundamental right to seek an abortion. The Court also found, however, that states could still impose restrictions on the procedure in the service of protecting the pregnant person’s health and the potential life of a fetus once it can survive outside the womb.
Beshear also argued that Kentucky’s bill should have included exclusions for victims of rape and incest, and that the law can’t be enforced without additional state-allocated funding. But the state House and Senate, which are both controlled by Republicans, overrode his veto on Wednesday evening.
“The Kentucky legislature was emboldened by a similar 15-week ban pending before the Supreme Court and other states passing abortion bans, including in Florida and Oklahoma, but this law and others like it remain unconstitutional,” Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project, said in a statement.
Thursday, the ACLU and other reproductive rights groups filed legal challenges to the ban, which they also believe to be unconstitutional. But if the Supreme Court were to overturn Roe v. Wade, as it is widely expected to, the new ban could survive, as could similar anti-abortion laws that have been passed in other states. That will force Kentuckians to travel to obtain an abortion, which will be prohibitively expensive for some. And it will exacerbate the challenges that Black, Latino, and Indigenous communities, as well as people with low incomes and those in rural communities, have already experienced in accessing abortions in the state.
What’s in the bill
Aside from imposing a 15-week abortion ban, a policy that copies a Mississippi law currently before the Supreme Court, the new law immediately implements a slew of new restrictions and requirements on doctors that makes it effectively impossible for them to continue to perform abortions in Kentucky.
For instance, the law makes it a felony for doctors to perform an abortion on a minor unless they have written consent from a parent or legal guardian, even in cases of incest.
It also imposes a host of new reporting rules on doctors. They have to disclose new personal health information, including how many times a patient has previously been pregnant and whether they tested positive for sexually transmitted diseases. If a provider fails to do so, they may face civil penalties and have their medical license suspended or revoked. The ACLU has argued that having to report those kinds of details violates a patient’s privacy — and that could ultimately dissuade people from seeking medical care.
Doctors also have to register with the state before administering medication abortions, which are typically performed through a combination of the FDA-approved drugs mifepristone and misoprostol. About half of all abortions in Kentucky are medication abortions. But the state hasn’t set up a system to register yet, meaning that it’s impossible for doctors to comply. The state hasn’t yet laid out its plans to do so.
And physicians performing nonsurgical procedures must maintain hospital admitting privileges near where they perform those procedures. Because local hospitals may refuse abortion providers admitting privileges at their discretion, that makes it impossible for pregnant people to obtain an abortion in certain areas of the state. The Supreme Court has previously struck down laws with similar requirements in Texas and Louisiana as unconstitutional.
“Make no mistake: the Kentucky Legislature’s sole goal with this law is to shut down health centers and completely eliminate abortion access in the state,” Planned Parenthood Federation of America and Planned Parenthood Great Northwest said in a statement.
The success of legal challenges to this law are in doubt
Abortion advocates have asked a Kentucky federal court to block the law for at least as long as their lawsuit plays out. The judge could rule in a matter of days. But the Supreme Court could upend their legal challenge before it has a chance to work its way through the court system, if the justices rule in favor of the state of Mississippi in the case Dobbs v. Jackson Women’s Health Organization.
A decision in the case is expected before the end of the court term, which typically concludes in late June or early July.
The case, a deliberate challenge to Roe, concerns a Mississippi law enacted in 2018 that banned abortions after 15 weeks of pregnancy with narrow exceptions for medical emergencies or a severe fetal abnormality. The court’s conservative majority could use the case as a vehicle to either partially or completely overturn Roe.
Many red states stand ready for that possibility. That includes Kentucky, one of more than 20 states with laws that could make abortion illegal immediately with exceptions for cases where the pregnant person’s life is in danger.