SCOKY hears abortion arguments: a thread

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Editor’s note: The Supreme Court of Kentucky heard oral arguments this morning in the case Cameron v. EMW Surgical Center – the case to determine whether Kentucky’s abortion ban is constitutional, and whether the court will issue a temporary injunction blocking the ban while the case is decided.

Alex Acquisto, the statewide reporter for the Herald-Leader, was in the courtroom and posted this Twitter thread as the hearing was going on.

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Ky Supreme Court chambers on this rainy Tuesday morning, where oral arguments will soon begin in the case challenging the constitutionality of Ky’s trigger law & 6wk abortion ban.

Matthew Kuhn, solicitor general, opens: there’s not a “shred of historical evidence...that suggest our constitution implicitly protects abortion.”

”What does this silence mean? It means our constitution is neutral on abortion” & the court should leave the issue to lawmakers.

Deputy Chief Justice Lisabeth Hughes interrupts him to ask about rejection of Amendment 2. Challenges the AG’s argument that that vote shouldn’t carry much weight.

”It strikes me that a ballot initiative is the purest form of democracy. It is the ppl, themselves, speaking.” Justice Michelle Keller, who just won reelection, scrutinizes the argument that the Ky constitution is unchanged after Amend. 2 vote. Asks about the brief Cameron filed a wk ago, asking the court to ignore that vote & leave the issue to lawmakers to decide.

Keller, on AG’s argument that Amend. 2 rejection shouldn’t carry weight & the issue should be left to lawmakers: “I’m struggling with why, then, the General Assembly thought it so important to put that initiative on the ballot to amend the Constitution” in the first place?

Hughes, on the claim that the const. doesn't explicitly mention abortion, bec. it was never intended as a protected right: “There were no women” at the writing of the 1891 constitution. “Women did not have the right to vote in 1891. Women could not even own property in 1891”

Hughes: since women didn’t have legal status at that time, “is that not then something the court can consider...following a 2022 ballot initiative when the people voted no?”

Hughes says the court has never weighed in on the sweeping constitutionality of abortion. And these laws are sweeping, she says.

These laws “don’t recognize” all exceptions for pregnant ppl whose doctor may tell them that the standard of care is termination. Kuhn says there’s a lot of “misinformation” around the health exceptions, that AG Cameron has put out two advisories clarifying for docs those exceptions.

Unclear what misinformation is he’s referencing. I’ve reported multiple times that docs have compromised care as a result.

Keller, a former nurse, criticizes the narrow parameters of Ky trigger law’s medical exception. It’s vagueness makes it subjective & takes autonomy away from patient, she says. “This exception...does not allow the mother to make any of her own decisions.”

Keller: “Do you know of any other time...when the patient themselves does not collaborate w/the physician during the exercise of reasonable judgment?” she asks, referencing the narrow parameters for when a doc can legally perform an abortion. “I know of no other time.” Kuhn is done.

Heather Gatnarek, lead counsel & staff attorney for ACLU is up. Don't think I've mentioned this yet, but ACLU, on behalf of EMW, & Planned Parenthood are asking justices to grant a temporary injunction to suspend enforcement of both bans until this case is resolved.

Idk if people watching the live stream can hear, but there are chants from protesters from, I assume, the rotunda. Can’t hear most of what they’re shouting, but I could make out, “Bans off our bodies.”

Gatnarek, arguing the need for an injunction: “Doctors should not be placed into a situation where they are left to watch their patient deteriorate before they meet one of these very narrow exceptions,” referencing the basically emergency medical exception in the trigger law.

Gatnarek: As for the AG’s advisories clarifying those medical exceptions, “They do not bind all the other prosecutors in the state if they believed there was criminal wrongdoing w/regard to abortion.”

“I don't think providers can rely on those advisories.” Gatnarek says Ky health care providers’ hands are being tied & references the amicus brief from the American College of Obstetricians & Gynecologists, AMA, etc: “both say this is not what moral, ethical healthcare looks like.”

Justice VanMeter says, OK, so if the court upholds Gatnarek's argument that the trigger law & 6wk ban are unconstitutional. What about the 15 wk ban, which was also passed into law this spring via House Bill 3? VanMeter, in asking about the delineation between when abortion should be legal/constitutional: “Why is that not a line-drawing exercise for the legislature? Isn’t that ultimately the role of the legislature (which crafts) public policy?”

Hughes sort of reiterates VanMeter’s questions: even if the high court grants the injunction, “there are still plenty of others (abortion bans enacted by the Legislature that are still in effect). There's a 20 week, there’s a 15 week...” Gatnarek is done.

Kuhn responding now. He says the argument before the court isn’t about the vagueness of Ky’s trigger law exceptions, but about the “right to elective abortion for any reason or no reason at all.” Kuhn also says EMW/PP have failed to demonstrate “specific circumstances when our health exceptions are inadequate.” Keller going hard at Kuhn about lack of med. exceptions, challenges AG’s advisories clarifying those exceptions & the position they put docs in w/a looming felony charge.

”Maybe you’re a single mother, maybe you’re there by yourself dying. Who’s going to mount that challenge?” Kuhn interrupts to say AG issued exception advisories. Keller interrupts: yes, but docs are still confused.

One of those clarifications was for preeclampsia. Keller gives him that, but “I could probably list 10 other situations when mother’s life is at risk” (that aren’t covered).

Here's that advisory clarifying that, if a pregnant person suffers from preeclampsia, a doctor can legally provide an abortion:

Actually, here's the advisory. Important to note that other states like Louisiana have issued lists of conditions that providers can legally treat with abortive procedures & not be charged w/a felony. Ky has not done that beyond this advisory from the AG:

The high court has adjourned. People are leaving the chambers & I can hear protesters chanting “no means no.” Protesters chanting, “Abortion is a right, we won’t give up the fight.”

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Follow Alex Acquisto on Twitter, and support her work by subscribing to the Herald-Leader.

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