The American Civil Liberties Union on Tuesday filed a class action lawsuit challenging two Kentucky abortion bans for violating the state’s constitutional right to privacy and self-determination.
The case concerns two different abortion bans. The first “six-week ban,” under the state’s statute section 311.7706, prohibits doctors from terminating pregnancy if there is a detectable fetal heartbeat unless it is necessary to prevent the mother’s death or substantial and irreversible impairment. The second “total ban,” under section 331.772, prohibits any administration of drugs and use of procedures to terminate pregnancy. The contravening of either provision attracts a maximum penalty of five years imprisonment.
The lawsuit argues that the bans force pregnant individuals and families to face significant physical and mental health risks and financial burdens followed by pregnancy and childbirth. Pregnancy and childbirth also negatively impact women’s ability to find or maintain employment and to provide for their families, according to the claim. The deprivation of access to legal abortion, therefore, amounts to irreparable harm to the state’s constitutional right to self-determination under section 1, which protects Kentuckians’ right to enjoy and defend their lives and liberties.
The lawsuit also alleges that the bans violate the constitutional right to privacy by allowing the state to intervene with personal and private decision-making related to reproductive matters. The intrusion amounts to a violation of section 2 of the constitution, which prohibits “the absolute and arbitrary power” over the lives and liberty in the state.
Mary Poe, the plaintiff who is currently seven weeks pregnant, expressed her frustration from being denied legal abortion, stating:
I feel overwhelmed and frustrated that I cannot access abortion care here in my own state, and I have started the difficult process of arranging to get care in another state where it’s legal. This involves trying to take time off work and securing child care, all of which place an enormous burden on me.
In February 2023, the Supreme Court of Kentucky declined a similar challenge to the abortion bans. The court refused to entertain the challenge, ruling that an abortion provider does not have a third-party standing to challenge the law on behalf of its patients and that the abortion provider does not enjoy a federal right to provide abortion.
There has been a heated debate around the right to abortion since the US Supreme Court overturned Roe v. Wade in June 2022. In Dobbs v. Jackson Women’s Health Organization, the court ruled there is no constitutional right to abortion. In addition to the recent Amnesty International criticism contending that the decision created a “human rights and healthcare crisis” throughout the country, seven states have also approved to guarantee the right to abortion in their state’s constitutions on the November 5 election. Nonetheless, 13 states maintain a total abortion ban, with another 28 states having abortion bans based on gestational duration.
