Lexie Overstreet walked many miles, knocking on doors to try to persuade Kentuckians not to cut off one of the last legal avenues to restore abortion rights in the state.
Now, she hopes her team’s victory at the polls on Tuesday will convince the state’s highest court to overturn a sweeping abortion ban passed by the Republican-led legislature.
“It was great to wake up this morning and know that Kentuckians are on the same side as me,” the 21-year-old University of Louisville student and volunteer said after the election. “And know that the thousands of doors I knocked on will not be forgotten and all those people I spoke to, they voted and their vote was heard.”
Whether those voices will resonate with the Kentucky Supreme Court, which is set to hear arguments for and against the ban on Tuesday, hinges on legal arguments about whether the state’s constitutional protections extend the right to abortion. With a hearing scheduled for Tuesday, the case is shaping up to be the first legal test for abortion rights after midterm elections in which voters across the country came out strongly in favor of maintaining legality. of abortion. No time frame was given for a decision.
In Kentucky, proponents of abortion rights believe the rejection of the amendment should be considered when judges hear the case.
“I hope the Supreme Court will listen to the will of the people and know that the people have rejected extremism and govern accordingly,” Gov. Andy Beshear, a Democrat, said in the days leading up to the crucial court hearing. court.
Beshear, who is running for re-election next year, can take comfort in knowing that his stance on abortion rights puts him squarely on the side of a majority of Kentuckians. But one of the GOP candidates who hopes to take office next year said voting shouldn’t be a factor.
Republican Attorney General Daniel Cameron said the result, while disappointing, did not change his belief that there is “no hidden abortion right in the Kentucky Constitution.” Abortion policy, Cameron said, “is up to our elected representatives in the General Assembly” to decide.
Right now, he is up to the courts, with attention shifting to the Kentucky Capitol courtroom in Frankfort, where Supreme Court justices will hear arguments in the case.
These arguments will center on a Louisville judge’s ruling from July, when he wrote that the state’s new post-Roe abortion bans likely violate “the rights to privacy and self-determination.” protected by the Kentucky constitution. Judge Mitch Perry said it was not the court’s role to determine whether the state constitution contains the right to abortion, but whether the state’s restrictive laws violate the freedoms guaranteed by its constitution.
It is unclear what impact, if any, the defeat of the anti-abortion measure will have on the court’s opinion of the case.
“It may well differ from one court to another,” said Samuel Marcosson, a law professor at the University of Louisville. “Some of them may view the initiative’s defeat as a strong signal that Kentuckians believe there is and should be a right in the constitution, and it might empower those judges to rule that way. Others will say that it is at best an uncertain signal, and that they have yet to determine the direction of the constitution.
Abortion opponents had hoped to close such a path in court. The amendment would have added “clarity and an additional level of protection against judicial activism,” said David Walls, executive director of The Family Foundation, a faith-based organization opposed to abortion.
Currently, abortions are mostly suspended in Kentucky, based on a trigger law at the center of the case in the state Supreme Court. Approved by lawmakers in 2019, the ban went into effect after Roe v. Wade in June by the United States Supreme Court. This law ended all abortions with narrow exceptions to save the life of a pregnant woman or to prevent disabling injury. There are no exceptions for victims of rape or incest. In August, the state high court kept the ban in place while it considers the case. A separate six-week ban that Kentucky lawmakers approved is also being challenged.
Now, abortion-rights supporters are hoping defeating the amendment will be a stepping stone to victory in court.
“This is an important step in continuing the legal fight for abortion access in this state,” said Rachel Sweet of Protect Kentucky Access, an abortion rights advocacy coalition. “Furthermore, it is a repudiation of the extreme anti-choice agenda that is out of step with the values and beliefs of most voters.”
Lawyers for the two abortion clinics left in Kentucky — both in Louisville, the state’s largest city — will seek an injunction from the state High Court to allow abortions to resume while the case is pleaded.
Meanwhile, proponents of abortion rights have won victories elsewhere in the country. Michigan, California and Vermont have voted to enshrine the right to abortion in their state constitutions. Montana voters rejected a ballot measure that would have forced medical workers to try to save lives in the rare case of a baby born after an attempted abortion.
In Michigan, Democrats who took control of the Legislature for the first time in decades signaled that asserting reproductive rights would be one of their top priorities in 2023.
Abortion rights supporters in Vermont plan to ask the legislature to enact protective laws to protect Vermont providers who perform abortion services for out-of-state travelers.
In Kentucky, Cameron played down the defeat of the anti-abortion amendment in a post-election filing with the Supreme Court, saying the result “does not bear on whether the court should create a Kentucky Roe v. Wade”.
“In short, because Kentucky voters chose to leave their Constitution as is, the constitutional text for the court to interpret in resolving this appeal is the same today as before the vote,” the Republican attorney general wrote. .
But Overstreet, the University of Louisville student and abortion rights volunteer, said voters’ rejection of the Kentucky amendment speaks volumes about where people stand.
“I have family in Appalachia and I grew up in the city,” she said. “People really underestimate Kentucky. People think Kentucky is regressive. They think Kentuckians don’t believe in each other. But that is absolutely not true. People in Kentucky want access to abortion. And that’s what this amendment has shown us.
Associated Press writers Wilson Ring in Stowe, Vermont; and Joey Cappelletti in Lansing, Michigan, contributed to this report.
This story was originally published November 13, 2022 10:27 a.m.