State Supreme Court refuses to restore injunction blocking two laws, so in almost all cases abortion remains illegal in Kentucky

Abortion in Kentucky remains illegal in almost all cases while a lawsuit by the state’s two abortion providers over the issue continues in the courts, the state Supreme Court ruled Thursday.

In a much anticipated but highly fractured decision, the court refused to restore a Louisville judge’s injunction that temporarily blocked two abortion bans last summer.

“We hold that the abortion providers lack third-party standing to challenge the statutes on behalf of their patients,” Justice Debra Lambert of Somerset wrote in the Feb. 16 opinion. “Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf.”

Lambert also wrote, “To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.”

The providers contend that the two bans violate a right to privacy that isn’t specified in the state constitution but has been found in earlier decisions of the court. Jefferson Circuit Judge Mitch Perry provisionally agreed with them last July and issued an injunction blocking the bans. Now te case goes back to him for more proceedings, which will start the case’s path back to the Supreme Court.

The bans make abortions illegal in Kentucky except when the pregnancy poses a risk to the woman’s life, or when fetal cardiac activity has begun, usually around six weeks into pregnancy and often before a woman knows she is pregnant. Both bans took effect last year after the U.S. Supreme Court overturned Roe v. Wade, the 1973 case that created a national right to abortion.

Perry’s ruling was stayed by Court of Appeals Judge Larry Thompson of Pikeville, and a badly divided Supreme Court allowed it to stand while voters considered a constitutional amendment that would have made the case moot by saying the state’s basic law creates no right to abortion. By 4.7 percentage points, voters rejected the amendment.

A week later, the court heard oral arguments, but was unable to reach a decision before two seats changed hands. They were held by the two justices who clearly wanted to keep the injunction in place: then-Chief Justice John Minton of Bowling Green and then-Justice Lisabeth Hughes of Louisville. Neither sought re-election. They were replaced by Kelly Thompson of Bowling Green, who moved up from the appeals court, and Angela McCormick Bisig of Louisville, who rose from the Jefferson circuit.

The newly constituted court ruled without hearing additional arguments, and was even more fractured than the old court had been. Only Justice Robert Conley of Russell joined Lambert’s controlling opinion. Justice Shea Nickell of Paducah agreed with them that Perry had abused his discretion, but said in a long dissent that the abortion providers had no right to challenge the laws until they were actually enforced, so the case should be dismissed.