ACLJ Files Amicus Brief With Kentucky Supreme Court in Support of Lifesaving Abortion Ban

This week, on behalf of ACLJ supporters, we filed an amicus brief with the Kentucky Supreme Court in support of two important pieces of pro-life legislation: Kentucky’s Human Life Protection Act (banning abortion upon the overturning of Roe v. Wade) and the Heartbeat Law (banning abortion after an unborn child has a detectable heartbeat). As explained in more detail here, Kentucky is one of several states that are facing legal challenges by abortion providers to secure a right to abortion under state constitutions. The ACLJ has already filed amicus briefs with the Michigan and Oklahoma Supreme Courts in defense of life (and the law) and will file another brief with the South Carolina Supreme Court this week.

As we argue in our amicus brief for the Kentucky Supreme Court, if that court were to unearth a constitutional right to abortion hidden somewhere within the text of the Kentucky Constitution, it would set the Kentucky judiciary upon the same long and tortuous path the U.S. Supreme Court stumbled along for 50 years—a journey that came to an end just months ago in Dobbs v. Jackson Women’s Health Organization.

Just as it was improper for the U.S. Supreme Court to arrogate to itself the role of determining whether abortion was a protected right and under what circumstances abortion could be limited, it would be improper for the Kentucky Supreme Court to do the same. Matters of policy and morality—in this case, a matter of life or death—are best debated, deliberated, and decided by elected representatives whose primary job is to express the will of the people through legislation. Courts are ill-equipped to perform such a function, and they exceed their constitutional authority when they do so. A ruling by the Kentucky Supreme Court that the state constitution protects a right to abortion would be nothing less than a judicial usurpation of the legislative authority of Kentucky’s first branch of government.

The abortion clinics in this case argue that a right to abortion is simply a logical expansion of the right to privacy and self-determination that Kentucky Supreme Court decisions already recognize. Not true. Not only does abortion implicate another human life, and is thus not entirely a personal matter or a question of autonomy, creating a right to abortion by judicial fiat would politicize the Kentucky judiciary in ways it has never before experienced.

As multitudinous decisions of the U.S. Supreme Court demonstrate, Roe’s creation of a “right” to abortion did not conclusively resolve the issue. Far from it. Instead, the Court faced decades of abortion-related litigation over the Court’s invented “right” to abortion and efforts by legislatures to affirm the sanctity of unborn human life, protect women from abusive practices, and address the problem of unsafe abortion practices. Along the way, the Court used an “ad hoc nullification machine” to disrupt previously well-settled judicial doctrines, including ones protecting First Amendment liberties, all in the name of protecting access to abortion without constraint.

A plurality of the U.S. Supreme Court (foolishly) thought that its decision in Planned Parenthood v. Casey would “call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It did not do so—obviously. Since Casey, and until Dobbs, litigation in federal courts revolving around the U.S. Supreme Court’s ever-changing and amorphous abortion jurisprudence multiplied by leaps and bounds.

And so the Kentucky Supreme Court faces a decisive choice: It can either hold, consistent with the text of the Kentucky Constitution, that no right to abortion exists, or it can plunge itself into the same legal web that enmeshed the federal judiciary from Roe to Dobbs.

Given that the Kentucky Constitution nowhere mentions abortion, the choice should be clear. Under the Kentucky Constitution, questions regarding legislation protecting the sanctity of human life, the safety of pregnant women, safeguarding patient informed consent, and the prevention of fly-by-night or other shoddy abortion practices, are left to the people and their duly enacted representatives to negotiate as to the best possible solution. Were the Kentucky Supreme Court to discover a “right” to abortion in the state constitution, it would have to begin legislating abortion policy from the bench, as the U.S. Supreme Court did for close to 50 years. Politicizing the state judiciary in this fashion will radically undermine the separation of powers entrenched in the Kentucky Constitution and injure the Commonwealth’s democratic process. It will also jeopardize, according to the logic of “abortion distortion,” other areas of Kentucky law.

The Kentucky Supreme Court will hear oral arguments in this case on November 15, one week after Kentuckians vote on amending the state’s constitution to leave the issue of abortion exactly where it belongs: the state legislature. We will keep you posted as this important case progresses.