Preserving a pro-life Kentucky

The U.S. Supreme Court’s decision to overturn Roe v. Wade affirms what we all have known—that the U.S. Constitution says nothing about the right to an abortion and that abortion policy must be left to the states. As lawmakers across the country undertake the hard work of legislating in this area, it is inevitable that legal challenges to pro-life laws will arise. That is currently happening in Kentucky. But my office is opposing any judicial action that would create a Kentucky version of Roe.

As a starting point, there is no right to an abortion in the Commonwealth’s constitution. When courts interpret that document, they look to the express language. Since its ratification in 1891, Kentucky’s constitution has never contained the word “abortion” or any reference to protecting abortion. And courts may neither add to nor take from the express words and plain meaning of that document.

If the framers of the Commonwealth’s constitution wanted to protect abortion, they would have said so. They did not. Instead, the debates at Kentucky’s constitutional convention refer to “abortion” on just two substantive occasions. The first reference notes that abortion violated the common law of Kentucky, and the second reference notes that abortion violated the laws of Indiana.

An 1879 decision by Kentucky’s highest court further supports that the Commonwealth’s constitution has never recognized a right to an abortion. In that decision, the court acknowledged that the General Assembly could pass laws to protect a child at any point of gestation. In 1910, the General Assembly did so. It passed a statute, which existed for more than 60 years, prohibiting the performance of an abortion at any stage of pregnancy. The statute included an exception for the life of the mother.

Shortly before Roe, Kentucky’s highest court considered a constitutional challenge to this statute. The court unanimously rejected the challenge and upheld the law. The court determined that deciding whether and when to prohibit abortion was a matter for the General Assembly and emphasized the court’s “obligation to exercise judicial restraint” regarding the will of the legislature.

Obviously, the U.S. Supreme Court’s decision in Roe shifted the legal landscape. In the wake of that decision, the Commonwealth’s highest court was “compelled” to find Kentucky’s prohibition on abortion unconstitutional as a matter of federal law.

But three Kentucky Justices reasserted that the General Assembly had the power to prohibit abortions and that Roe was wrong to conclude otherwise. Justice Osborne believed that Roe “usurp[ed] the rights of the several states,” while Justice Reed and Chief Justice Palmore said that Roe was not based on “any legal principle that the judiciary may properly rely upon.”

The Justices were not the only ones to protest what Roe had forced on Kentucky. Shortly after that decision, the General Assembly declared it the “policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development.” This provision remains in Kentucky’s statutes today, and in the past several legislative sessions our General Assembly has enacted additional protections to further that policy. 

Consequently, the Dobbs decision, which overruled Roe, simply restores Kentucky law to the blueprint set by our state constitution, as recognized by decades of unbroken precedent in Kentucky courts. For 49 years, our long history of protecting unborn life had been eclipsed by federal judicial activism, but thankfully the shadow of Roe has now lifted. 

As the Attorney General of Kentucky, I am opposing any judicial action that would undo that progress by creating a Kentucky version of Roe. Our history and state constitution are quite clear: questions of such significance should be decided in the statehouse rather than courthouses, with voices expressed through elected representatives rather than through retained attorneys. This is why I will be voting “yes” on Constitutional Amendment 2 in November. And it is why later that same month my office will appear before the Kentucky Supreme Court to continue our defense of Kentucky’s pro-life laws.

Editor’s note: Amendment 2 will be on the Kentucky ballot on Nov. 8. The text of the proposed amendment reads: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”