The American Civil Liberties Union (ACLU) has initiated a legal battle challenging the constitutionality of two abortion bans in Kentucky. The class action lawsuit, filed on Tuesday, purports that these bans infringe upon the state’s constitutional rights to privacy and self-determination.
The challenge involves two notable legislative measures. The first is the six-week ban found under state statute section 311.7706. This regulation forbids medical professionals from performing an abortion if a fetal heartbeat is detectable, except in cases where the mother’s life is at risk or there is a threat of substantial and irreversible impairment. The second measure is a total ban under section 331.772, which prohibits the use of any drugs or procedures to terminate a pregnancy, both carrying severe legal penalties of up to five years in prison for violations.
The ACLU’s lawsuit argues that these restrictions subject individuals to considerable physical and mental health risks, as well as financial burdens, which extend to their ability to maintain employment and provide for their families. As such, the deprivation of access to legal abortion constitutes an irreparable harm to Kentucky’s constitutional protections offered under section 1, which safeguards the right to life and personal liberties.
Moreover, the lawsuit contends that the bans unlawfully interfere with personal and private reproductive decision-making, constituting a breach of constitutional privacy rights. This is asserted under section 2, which prohibits any form of “absolute and arbitrary power” over the lives of individuals in the state.
The plaintiff, Mary Poe, who is seven weeks pregnant, shared her distress over being denied an abortion in Kentucky, explaining the significant logistical and emotional challenges of seeking care in another state, including arranging time off work and childcare.
In a related procedural history, the Supreme Court of Kentucky declined to hear a similar challenge earlier this year. The court’s decision was based on the finding that an abortion provider lacks third-party standing to challenge the laws on behalf of its patients, and does not possess a federal right to offer abortion services.
The battle over abortion rights remains a contentious issue nationwide following the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling, which overturned the longstanding Roe v. Wade precedent, eliminating a federally recognized constitutional right to abortion. Meanwhile, while criticism continues from groups such as Amnesty International about what they describe as a “human rights and healthcare crisis,” some states have taken steps in the recent November elections to enshrine abortion rights in their constitutions. Yet, the landscape remains varied, with 13 states maintaining a total abortion ban and others having gestational duration-based restrictions, as summarized by the Guttmacher Institute.