A Kentucky lawyer explains what the Dobbs decision means for abortion and other “settled laws”
Almost all legal abortions are now effectively banned in Kentucky, after the United States Supreme Court decided to uphold the Mississippi law banning abortion at 15 weeks. The decision Friday overturned the 1973 case Roe v. Wade, by ending federal protections for abortion access and granting states the power to limit or ban it.
WFPL’s Jonese Franklin spoke with University of Louisville law professor Sam Marcosson after the decision became public. Responses have been edited for length and clarity.
Kentucky has a “trigger law,” which was put into place to ban abortion automatically if Roe v. Wade was overturned. Does that mean that abortion is now illegal in the state of Kentucky?
I think that’s exactly what it means. That law makes it a Class D felony to perform an abortion except in the very unusual circumstances when the life of the mother is at stake. So that law now goes into effect because, as the court did today, Roe has been overruled. So yes, abortion is illegal.
Kentucky also has other abortion restriction laws on the books that are currently blocked, including one banning abortion around six weeks and another at 15 weeks. What could this Supreme Court ruling mean for those cases, or at this point is that moot?
They’re not moot, exactly. What it means is that because there are injunctions in effect in those cases, the attorney general presumably will have to go back into court and ask the judges to dissolve those injunctions on the authority of Dobbs v. Jackson Women’s Health Organization. That will be a fairly automatic and quick process, I think. But [the attorney general] will have to go through that exercise, that formality. So that I would expect to happen very, very soon.
The ACLU says it’s going to pursue legal action in state court. Is there any legal recourse for those who want legal abortion access in Kentucky? Or is this ruling the nail in the coffin?
It is possible to have a state court interpret the state constitution to protect rights more broadly than a similar right would be protected under the federal constitution. And so they could ask the Kentucky courts, all the way up to the Kentucky Supreme Court, to say that, while there may not be a right to abortion under Dobbs, protected by the federal constitution, there is such a right under the Kentucky Constitution’s right to privacy.
The vulnerability of that approach is that we know that there is a ballot amendment that is going to be voted on in November, which would make it explicit that the Kentucky Constitution does not protect a right to abortion. If that amendment were to pass, any resort to the state constitution would be cut off. So depending on how that ballot initiative comes out, any victory in state court would not have lasting effect. On the other hand, if that ballot initiative were to fail in November, then a state court case could be extremely significant.
Do you believe Friday’s ruling from the Supreme Court will lead to the court overturning other decisions that have also been called settled law?
Well, we certainly know that Justice Clarence Thomas said explicitly in his concurrence that he not only thinks the court should consider overruling decisions like Griswold v. Connecticut, which dealt with access to contraceptives as a matter of constitutional right, Obergefell against Hodges, this marriage equality case, Lawrence v. Texas, the right to same-sex couples engaging in private sexual conduct. He wants to not only consider those decisions, but he would overrule them.
Now the majority says, disclaims that today’s decision means that. They try, in my view, very un-persuasively to distinguish those 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 involving any sort of application of the right to privacy or substantive due process, to be called into question to be challenged.