Commentary

Callous abortion bans are fueling outrage

Even Kentucky lawmakers must see it

December 22, 2023 5:40 am

Ohioans for Reproductive Freedom hold a Bans OFF rally in Columbus on Oct 8, 2023, a month before Ohio voters approved a ballot initiative supporting abortion rights — and almost a year after Kentucky voters rejected an amendment denying them. (Graham Stokes for Ohio Capital Journal)

Kentucky abortion-rights advocates are caught in a difficult legal situation: Only pregnant women seeking abortions have the right to challenge abortion bans, the state Supreme Court has ruled. 

The first effort at a class-action lawsuit was recently withdrawn when the 33-year-old Jane Doe discovered her fetus at eight weeks no longer had cardiac activity. Lawyers representing the American Civil Liberties Union and Planned Parenthood are searching for others willing to sue.

“The court’s decision has forced Kentuckians seeking abortion to bring a lawsuit while in the middle of seeking time-sensitive health care, a daunting feat, and one that should not be necessary to reclaim the fundamental right to control their own bodies,” the groups said in a statement. 

What anti-abortionists overlook — or ignore — is that pregnancy is often full of dangerous complications for the woman and fetus. That exceptions written into some bans are usually vague and narrow. That decisions often must be made urgently, yet doctors and hospitals are afraid of prosecution. And that it is unfair to punish women for unexpected negative consequences.

When the U.S. Supreme Court ended the federal right to abortion in 2022, Kentucky joined 13 other states in a competition for the harshest policies. Abortion was illegal at 24 weeks, when a fetus is viable outside the womb. Kentucky now has both a near-total ban and a six-week one. 

Since then, lawmakers have ignored Kentucky voters’ rejection of a constitutional amendment denying abortion rights. The high court refused to rule on whether abortion is a privacy right. A key factor in Gov. Andy Beshear’s November reelection was the need for ban exceptions for rape and incest. Yet, there is no sign legislative leaders plan to do so.

Meanwhile, momentum builds for abortion rights across the nation in courts and at ballot boxes. Twelve plaintiffs represented by the Center for Reproductive Rights are challenging abortion bans in Idaho, Oklahoma and Tennessee. In Texas, the center filed a March lawsuit by 20 women and two OB-GYNs saying bans make it difficult for those with pregnancy complications. 

Plaintiffs Anna Zargarian, Lauren Miller, Lauren Hall, and Amanda Zurawski at the Texas State Capitol after filing a lawsuit on behalf of Texans harmed by the state’s abortion ban on March 07, 2023 in Austin, Texas. (Rick Kern | Getty Images for the Center for Reproductive Rights)

Also, activists in at least nine states seek to put reproductive freedom measures on the 2024 ballot — following the lead of conservative Kansas and Ohio.

The Kentucky lawsuit was filed during the same time Texas officials blocked an abortion for a woman whose fetus had a fatal genetic condition, and an Ohio prosecutor criminally charged a woman after she had a miscarriage.

Kate Cox, a 31-year-old Dallas mother of two, received a judge’s ruling allowing an abortion. The state Supreme Court overturned it because — despite negative impacts on her health and ability have another child — she was not close to dying. The attorney general threatened to sue her husband, her doctor and three hospitals if they aided her. She left the state to have an abortion.

Brittany Watts, 33, of Warren, Ohio, has been charged with felony “abuse of corpse” after having a miscarriage while on the toilet. State law, primarily aimed at medical facilities, requires burial or cremation of fetal remains. She faces up to a year in prison and a $2,500 fine. 

The fetus, at 22 weeks, was not viable, a doctor has ruled. Watts was turned away twice from a hospital when she suspected a miscarriage, which happens in about 26 percent of pregnancies, according to the National Library of Medicine. A nurse reported her to the police. Most states prosecute doctors, not the women. This case could lead to more women being charged.

The cruelty also could spread nationwide. The U.S. Supreme Court will decide by June whether to limit access to mifepristone, one of two drugs used in early medication abortions, which account for more than half of all U.S. abortions. Using the other drug alone causes more cramping and bleeding. 

This case began with a lawsuit by the Alliance for Hippocratic Medicine, a coalition of Christian medical groups and doctors. The drug, safely used for more than 20 years, should not have been approved, the alliance argues. An anti-abortion federal judge in Texas agreed. 

An appeals court ruled instead to roll back recent expansions of access to the drug, including through telehealth and mail delivery. Kentucky requires an in-person meeting with a doctor and using the pills only to save a woman’s life. However, the medicine can be ordered online.

The Biden administration, along with the drugmaker Danco, asked the Supreme Court to reject the appeals court’s effort to overrule the Food and Drug Administration’s research and regulation. 

Contrary to the Kentucky high court’s logic on who has the right to sue, this suit was not filed by women who used abortion pills or doctors who prescribed it. 

The alliance maintains its members could someday care for someone after a medication abortion, distracting from other patients and presenting personal conflicts. The primary aim, it says, is to protect women and girls.

Yet those who support the right of women to manage their own health care are speaking up for themselves. Even in Kentucky, lawmakers must realize that the callousness of abortion bans only adds to the outrage.

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Vanessa Gallman
Vanessa Gallman

Vanessa Gallman, a Kentucky Lantern freelance columnist, worked for more than two decades as editorial page editor for the Lexington Herald-Leader. She was also a local government editor for The Washington Post and a national correspondent for Knight-Ridder Inc.

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