Although the law does not explicitly ban abortion in the state altogether, it appears to take another approach to eradicating the procedure, imposing restrictions too difficult for clinics to overcome with their current infrastructure as well as the state’s, like one that requires burial or cremation for fetal remains.
The two organizations said they will argue in their lawsuits that the Kentucky law creates “unnecessary abortion requirements while simultaneously making those requirements impossible to comply with,” making the law a “de facto abortion ban.”
By creating what amounts to a total abortion ban in the state, the organizations said the “laundry list” of abortion restrictions violate the protections established in the landmark Roe v. Wade ruling. And one aspect of the law – which imposes a ban on abortion after 15 weeks of pregnancy – perhaps displays that most clearly, patterned as it is after a Mississippi law currently under review by the Supreme Court.
The justices are mulling a case, Dobbs v. Jackson Women’s Health Organization, that takes on a Mississippi law banning abortion after 15 weeks of pregnancy. The Mississippi rule is a direct challenge to Roe v. Wade, the seemingly untouchable behemoth of constitutional law. Long the white whale of conservative activism, the landmark 1973 decision affirmed a right to an abortion before fetal viability – generally understood by experts to mean 24 weeks of pregnancy.
The imminent Supreme Court decision could shift power on the issue from the federal government to the states, setting the backdrop for a burgeoning anti-abortion movement that has come to a head in recent months as lawmakers in Republican-controlled legislatures have appeared to move with haste to pass a wave of controversial legislation, steamrolling ahead despite emotional pleas from Democrats and protesting constituents on the steps of statehouses.
The justices have struck down restrictions that pose an “undue burden” to women seeking abortions, such as those that impose physical infrastructure requirements on clinics or mandate that physicians have admitting privileges at nearby hospitals. Passed nominally as a way to protect women’s health, they have the effect of forcing providers to shut their doors. Abortion bans in recent years have aimed in part to set up court cases that could overturn or limit the scope of Roe. But after the newly conservative supermajority high court heard Dobbs, recent moves in states instead look to be preparing for the justices to alter the precedent established nearly 50 years ago, likely upholding the Mississippi ban by allowing states to set earlier limits on abortion or by overruling Roe altogether.