Kentucky Is a Major Battleground in the Post-Roe Fight for Life and It Just Got a Big Win

Even after Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s momentous decision overturning Roe v. Wade, the fight to protect unborn life is far from over. Shortly after the Supreme Court issued its decision in Dobbs, the ACLU and Planned Parenthood fired up their litigation machines and got to work. They filed lawsuits in numerous pro-life states arguing that state constitutions contain what, in light of Dobbs, the U.S. Constitution in truth never had: an unwritten right to abortion. Far from putting an end to litigation over abortion, Dobbs has merely shifted Planned Parenthood and the ACLU’s focus: from the federal courts to state courts, from the U.S. Constitution to state constitutions.

One of the states the ACLU set its sights on was Kentucky. Three days after Dobbs was decided, the ACLU filed a lawsuit against Kentucky claiming that the Kentucky Constitution protects a right to abortion—even though the state constitution says as much about abortion as does the U.S. Constitution: nothing. Because of this unwritten “right,” the ACLU argues, Kentucky’s two pro-life laws are unconstitutional: a “trigger law,” banning abortion upon the Supreme Court’s decision to overrule Roe v. Wade, and a heartbeat law, banning abortion after the detection of a fetal heartbeat.

After the trial court granted a preliminary injunction against enforcement of the two laws pending the outcome of the ACLU’s legal challenge, the Kentucky Attorney General’s office took that decision to the Court of Appeals which (wisely) blocked the trial court’s order. The ACLU then took that decision to the Kentucky Supreme Court, which (thankfully) upheld the order of the Court of Appeals.

In other words, until the ACLU’s lawsuit is ultimately resolved by the Kentucky Supreme Court, unborn life is protected by Kentucky state law and abortion is banned in the Commonwealth. The ACLU’s attempt to obtain immediate and preliminary relief failed.

And the ACLU faces another hurdle: On November 8th, Kentucky voters will decide whether to amend the state constitution with the following language: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

If that language is adopted, the ACLU’s lawsuit will become moot and abortion-related restrictions and regulations will be addressed in the place where such questions should be deliberated and decided: Kentucky’s General Assembly. As we learned from decades of the Supreme Court acting as an ex officio medical board reviewing state abortion laws, and not a court of law, the judiciary—whether it be state or federal—is not the forum to resolve important matters of morality.

The Kentucky Supreme Court will hear oral arguments in this case on November 15, one week after Kentuckians go to the polls. Our amicus brief in support of Kentucky’s pro-life laws will be filed with the court on October 4th.