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Several Kentucky Supreme Court justices are skeptical of a near-total ban on abortion.

On Tuesday, several Kentucky Supreme Court justices were skeptical of the state’s ban on abortion, one of the most restrictive in the US, during oral arguments in a case that will decide whether women will have access to the procedure for the foreseeable future.

The EMW Women’s Surgical Center, an abortion clinic based in Louisville, has called on the Kentucky Supreme Court to temporarily block a ban that does not make exceptions for rape or incest. This makes an exception when the mother’s life is in danger, although this is determined by the doctor.

The hearing in the Kentucky Supreme Court came after voters rejected during the midterm elections an amendment that would make the state’s constitution ban the right to abortion.

The Kentucky Republican Attorney General’s office on Tuesday said the state constitution is neutral on abortion and regulation of the procedure is the decision of the legislature. Matthew Kuhn, Solicitor General of the State, has argued that there is no historical evidence that the state constitution, adopted in 1891, includes a right to procedure.

“When it comes to abortion, our constitution here in Kentucky is just silent,” Kuhn said. “And there is not a shred of historical evidence, neither in the case law of this court nor in our constitutional debate, that our constitution implicitly protects abortion,” Kuhn said.

Associate Chief Justice Lizabeth Hughes countered that there were no women at the 1890 constitutional convention, and women at the time did not have the right to vote or even own property, except in limited circumstances.

“I have some questions about the need to base our decision in 2022 on what happened in 1890,” Hughes said, calling voters’ rejection of last week’s anti-abortion constitutional amendment “the purest form of democracy.”

Judge Michelle Keller, who was once a registered nurse, said the state constitution protects the right to self-determination. Keller said the limited exceptions to the ban, when the patient’s life is in danger, give the mother no role in even that decision.

Instead, the doctor on duty determines whether an abortion is medically necessary, and in many cases they don’t know what is legal under the ban, Keller said. Doctors spend precious time consulting with hospital risk managers and lawyers to make sure they’re getting an exception to the ban, she said. Performing an abortion is a felony punishable by up to five years in prison in Kentucky.

“If a man bleeds to death in the emergency room, he has every right to self-determination in the world, as do most women, unless they are pregnant, and then suddenly there is no self-determination. And then the doctor tries to contact the attorney general,” Keller said.

Judge Lawrence VanMeter appeared to question the ban’s lack of exceptions for rape and incest. While some people view abortion as an acceptable form of birth control, he says state courts have to deal with horrific juvenile crimes.

Kuhn, representing the state’s attorney general, said the legislature has not met since the ban went into effect and may include such exemptions in the future. But Chief Justice John Minton pointed out that the legislature did not pass an amendment earlier this year that would provide for those exceptions.

Kuhn said the court could issue an injunction allowing abortion in cases of rape and incest but keeping the rest of the injunction in place.

Heather Gatnarek, an ACLU attorney representing the plaintiffs, said Kentucky’s abortion ban irreparably harms patients served by the state’s two abortion clinics by forcing them to stay pregnant against their will, exposing their physical and mental health.

It’s unclear how the seven-member Kentucky Supreme Court will ultimately rule. If they do block a near-total ban while the lawsuit continues in a lower court, the 15-week abortion ban, which is also on the books, will remain in place.


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