The news was happier for supporters of reproductive rights in Kentucky as they celebrated the defeat of an anti-abortion constitutional amendment in November 2022. Less than five months earlier the Dobbs decision has allowed a near-total ban on the procedure to take effect in Kentucky. (Photo for Kentucky Lantern by Arden Barnes)

If Kentucky voters had approved the ballot measure denying any constitutional support for abortion rights, the results certainly would have been used to argue for retaining restrictive bans.

So why shouldn’t the rejection of that measure be a key factor in the Kentucky Supreme Court’s various decisions about the constitutionality of abortion laws??

The legislature put it on the ballot. Voters rejected it. Yet Solicitor General Matthew Kuhn, speaking for Attorney General Daniel Cameron, argued during a Nov. 15 hearing that the vote should have no bearing on the court’s abortion decisions.?

What disrespect. Not just to those who must leave the state to get the medical procedure but to? all citizens who actually thought lawmakers wanted their opinions. Citizen feedback is especially needed when the legislature is dominated by one political party walking in lockstep.

“It strikes me that a ballot initiative is the purest form of democracy,” outgoing Deputy Chief Justice Lisabeth Hughes rightly responded to Kuhn during the hearing. “It is the people, themselves, speaking.”

Now it is the court’s time to speak up with sorely needed clarity about three abortion bans. The justices should eventually side with arguments from abortion providers and a lower court decision that punitive bans violate the right to privacy and reproductive freedom.?

Expected first: a decision on whether abortions can temporarily resume until there is a full hearing on the legality of a ban from conception and one from six-weeks — before women even know they are pregnant.?

The 15-week ban, based on the Mississippi law that enabled the U.S. Supreme Court’s June decision to end federal abortion rights, will be challenged in a separate lawsuit. None of the Kentucky laws provide exceptions for rape or incest. The Roe v. Wade ruling, overturned earlier this year by the Supreme Court, had allowed abortion to around 24 weeks, when the fetus was viable outside of the womb.?

Since Kentucky’s constitution is “silent” on abortion, Republican Kuhn argued, the legislature — not the courts — has the final say. But several justices pointed out that women had no voice at all in politics and law when the 1891 constitution was drafted. This is 2022.?

“It is the role of the legislature to legislate, but they must do so within the confines of what this court tells them is constitutionally permissible,” responded Heather Gatnarek of the American Civil Liberties Union in Kentucky, which supports abortion providers.

What the court should not permit is the silencing of women who seek to retain some control over their own bodies. It should not allow the legislature to keep Kentucky mired in the past. Nor should it give its blessing to a legislature determined to dismiss the voters who have told them their policies are too extreme.?

Kentuckians have spoken. It must matter.