Challenge to Kentucky’s abortion ban dismissed as advocates seek a patient to press case

McGarvey says U.S. House Democrats pushing for a law to restore abortion as a federal right

By: - June 27, 2023 4:52 pm

Protesters and clinic escorts gathered outside EMW Women’s Surgical Center in Louisville last year before abortion was banned in Kentucky. (Photo by Deborah Yetter)

LOUISVILLE — A judge has dismissed a lawsuit challenging the constitutionality of two Kentucky laws that together ban nearly all abortions, a week after the state’s two licensed abortion providers signaled they planned to drop the case — for now.

Jefferson Circuit Judge Mitch Perry on Tuesday signed an order the parties submitted agreeing to dismiss the case.

EMW Women’s Surgical Center and Planned Parenthood said in a June 20 filing that they would drop the case in light of a state Supreme Court ruling earlier this year that to pursue it, they must find a patient to serve as a plaintiff.

Amber Duke

But they have not given up, Amber Duke, executive director of the American Civil Liberties Union of Kentucky, said at a news conference Saturday.

“It’s very difficult to find someone to come forward,” Duke said. “We stand ready to file and immediately go back in court when we have someone who is in a position to take on the lawsuit.”

The ACLU represents EMW, and Duke was speaking at a news conference called to commemorate the one-year anniversary of the U.S. Supreme Court decision that struck down the federal right to abortion.

Access to abortion ended immediately in Kentucky after the June 24, 2022, ruling because of a “trigger law” on the books to ban the procedure should the high court overturn Roe v. Wade, the landmark 1973 case establishing it as a federal constitutional right.

EMW and Planned Parenthood had challenged that law in state court, arguing Kentucky’s Constitution provides a right to abortion. They also had challenged a second law, a ban on abortion once cardiac impulses are detected in an embryo, at about six weeks and often before most women know they are pregnant.

But the state Supreme Court curtailed their right to challenge the laws, ruling that the clinics lacked “standing,” or the right to sue without a patient as a plaintiff who had been affected by the laws, even though providers have often been granted standing to pursue such cases by the courts.

Kentucky Attorney General Daniel Cameron, an anti-abortion Republican who is defending the two laws, signed off on Tuesday’s agreed order.

Cameron is running in this year’s gubernatorial race against Gov. Andy Beshear, the Democratic incumbent who supports abortion rights. Cameron previously had praised news the clinics had agreed to drop the case.

“My office will always defend and enforce Kentucky’s pro-life laws passed by our General Assembly,” he said in a statement.

Kentucky Right to Life, which had supported the laws, celebrated the decision of the plaintiffs to end litigation.

“They have walked away from their own case,” said Addia Wuchner, executive director, in a post on the organization’s website. “Today, every word of every pro-life law is intact.”

U.S. Rep. Morgan McGarvey, a Louisville Democrat, speaks at a news conference Saturday to mark the one-year anniversary of the date the U.S. Supreme Court struck down Roe v. Wade (Photo by Deborah Yetter)

However, abortion rights supporters vowed to continue the fight, speaking at Saturday’s news conference held at Planned Parenthood’s clinic in Louisville.

U.S. Rep Morgan McGarvey, who represents Kentucky’s 3rd Congressional District based in Louisville, said he is among a group of House Democrats pushing a measure called the Women’s Health Protection Act to restore abortion as a federal right.

“Right now, no woman in Kentucky can receive an abortion even in cases of rape or incest,” McGarvey said. “Abortion is health care. We must make sure that that health care continues to be available in a safe and legal way.”

Kentucky laws make no exception for pregnancies resulting from rape, incest or in cases of serious fetal abnormality. Nor do they make allowances for the age of the patient where, in Kentucky, the two youngest patients in the last two years abortion was legal were age 9.

Meanwhile, abortion rights advocates say they will remain active in Kentucky and keep fighting for women seeking abortions in other states. Both EMW and Planned Parenthood are taking calls and providing information to such patients.

“We aren’t going anywhere,” said Tamarra Wieder, Kentucky state director of Planned Parenthood Alliance Advocates. “These doors stay open. Through thick and thin, we’ll be fighting for the future we know is possible.”

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Deborah Yetter
Deborah Yetter

Deborah Yetter is an independent journalist who previously worked for 38 years for The Courier Journal, where she focused on child welfare and health and human services. She lives in Louisville and has a master's degree in journalism from Northwestern University and a bachelor's degree from the University of Louisville.

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