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/article_11a511b6-5475-11ed-b043-e7e44812c0c8.html OP-ED: Preserving a
Pro-Life Kentucky
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/article_11a511b6-5475-11ed-b043-e7e44812c0c8.html By Attorney General
Daniel Cameron

FRANKFORT, Ky. (October 25, 2022) -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
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VW62lTMN8fNm9U6OWZ-VNNJUxzSdh-LdEYlS9Qi08Yo/s/2902818564/br/146688722997
-l 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
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InVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMjEwMjUuNjU2MzY1ODEiLCJ1
cmwiOiJodHRwczovL2Nhc2V0ZXh0LmNvbS9jYXNlL2NvbW1vbndlYWx0aC12LWNsYXljb21i
In0.d38ho9WC9t4dQIjIkM2xvqzdagTngT8TzyFKGyMnzvI/s/2902818564/br/14668872
2997-l 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
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cmwiOiJodHRwczovL2NpdGUuY2FzZS5sYXcva3kvNzgvMjA0LyJ9.boV366QJbsby_ZpExAG
IDvQccqstvwaOW5xqt0cq_1A/s/2902818564/br/146688722997-l 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
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cmwiOiJodHRwczovL2xhdy5qdXN0aWEuY29tL2Nhc2VzL2tlbnR1Y2t5L2NvdXJ0LW9mLWFw
cGVhbHMvMTk3Mi80ODUtcy13LTJkLTg5Ny0xLmh0bWwifQ.jH5UhaT-Zv170dNTpezIYRgB5
JDLPcXbunblsmwc9uc/s/2902818564/br/146688722997-l was a matter for the
General Assembly and emphasized the court’s
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cmwiOiJodHRwczovL2xhdy5qdXN0aWEuY29tL2Nhc2VzL2tlbnR1Y2t5L2NvdXJ0LW9mLWFw
cGVhbHMvMTk3Mi80ODUtcy13LTJkLTg5Ny0xLmh0bWwifQ.RTPHh9S8cXTavw6dncVEzpiH1
kvUm3bptWiq8fyqQYw/s/2902818564/br/146688722997-l “obligation to
exercise judicial restraint” regarding the will of the legislature.
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.

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
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1cmwiOiJodHRwczovL2Nhc2V0ZXh0LmNvbS9jYXNlL3Nhc2FraS12LWNvbW1vbndlYWx0aC0
xIn0.X7qExurTXghHGhAEJCthLwYyrlmanWu5n2CrlbmrL_0/s/2902818564/br/1466887
22997-l 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
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1cmwiOiJodHRwczovL2Nhc2V0ZXh0LmNvbS9jYXNlL3Nhc2FraS12LWNvbW1vbndlYWx0aC0
xIn0.T7iJZKs0K1ciRb9ZwSECI-4vbXK8V-jNWJ0QPacqyRI/s/2902818564/br/1466887
22997-l usurp[ed] the rights of the several states,” while Justice Reed
and Chief Justice Palmore said that Roe was not based on
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xIn0.6f-IDBB5IIiEMRcGe9gLjqHplKt-mhMXZhgnBqxaqwE/s/2902818564/br/1466887
22997-l 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
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1cmwiOiJodHRwczovL2FwcHMubGVnaXNsYXR1cmUua3kuZ292L2xhdy9zdGF0dXRlcy9zdGF
0dXRlLmFzcHg_aWQ9MzA2MjUifQ.tH1F93lTFW9XaqS2AcIMevVsCo3buAGrj14qIX0EeLY/
s/2902818564/br/146688722997-l 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.

Daniel Cameron is the 51st Attorney General of the
Commonwealth of Kentucky.
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