Almost all legal abortions are now effectively banned in Kentucky, after the US Supreme Court decided to uphold Mississippi’s law banning abortion at 15 weeks. Friday’s ruling overturned the 1973 case Roe vs. Wadeby ending federal protections for access to abortion and granting states the power to limit or prohibit it.
Jonese Franklin of WFPL spoke with Sam Marcosson, a law professor at the University of Louisville, after the decision was made public. Responses have been edited for length and clarity.
Kentucky has a “trigger lawwhich was put in place to automatically prohibit abortion if Roe vs. Wade was overthrown. Does this mean abortion is now illegal in the state of Kentucky?
I think that’s exactly what it means. This law makes it a Class D crime to perform an abortion, except in very unusual circumstances where the life of the mother is at stake. So this law comes into effect because, as the court said today, deer was canceled. So yes, abortion is illegal.
Kentucky also has other abortion restriction laws on the books that are currently stalled, including one banning abortion at around six weeks and another at 15 weeks. What could this Supreme Court decision mean for these cases, or at this point is it moot?
They are not theoretical, exactly. What this means is that because there are injunctions in effect in these cases, the Attorney General will presumably have to go back to court and ask the judges to dissolve these injunctions on the authority of Dobbs v. Jackson Women’s Health Organization. It will be a fairly automatic and quick process, I think. But [the attorney general] will have to go through this exercise, this formality. So I expect that to happen very, very soon.
The ACLU says it will file a lawsuit in state court. Is there legal recourse for those who want legal access to abortion in Kentucky? Or is this rule the nail in the coffin?
It is possible for a state court to interpret the state constitution to protect rights more broadly than a similar right would be protected under the federal constitution. And so that they can ask the courts of Kentucky, all the way to the Supreme Court of Kentucky, to say that while there may not be a right to abortion under Dobbsprotected by the federal constitution, there is such a right under the right to privacy of the Kentucky Constitution.
The vulnerability of this approach is that we know there is a ballot amendment to be voted on in November that would explicitly state that the Kentucky Constitution does not protect the right to abortion. If this amendment were to pass, any recourse to the state constitution would be severed. So depending on how this ballot initiative comes out, any victory in state court would not have a lasting effect. On the other hand, if that ballot initiative were to fail in November, a case in state court could be hugely important.
Do you believe Friday’s Supreme Court decision will lead the court to overturn other decisions that have also been called established law?
Well, we certainly know that Judge Clarence Thomas said explicitly in his agreement that he doesn’t just think the court should consider overturning decisions like Griswold v. Connecticutwhich dealt with access to contraceptives as a constitutional right, Obergefell v. Hodges, this marriage equality case, Lawrence v. Texas, the right of same-sex couples to have private sexual relations. He not only wants to consider these decisions, but he would reverse them.
Now, the majority says, denies that today’s decision means that. They try, in my opinion, in a very unconvincing way to distinguish between these cases. It’s hard to predict where the court will draw the line. But I think the door has been opened for all of those decisions, every decision that involved some sort of application of the right to privacy or substantive due process, to be called into question to be challenged.