LEXINGTON, Ky. — A Kentucky woman Friday filed an emergency class-action lawsuit, asking a Jefferson County judge to allow her to terminate her pregnancy.
It’s the first lawsuit of its kind in Kentucky since the state banned nearly all abortions in 2022 and one of the only times nationwide since before Roe v. Wade in 1973 that an adult woman has asked a court to intervene on her behalf and allow her to get an abortion.
A woman in Texas this week was given permission by a local judge to allow her to terminate her nonviable pregnancy. Kentucky, like Texas, has a near-total abortion ban with no exceptions for rape, incest or lethal fetal conditions that result in a nonviable pregnancy.
The Kentucky woman, who’s using the pseudonym Jane Doe, is eight weeks pregnant and is seeking an abortion in the Bluegrass State, “but cannot legally do so because of the challenged abortion bans,” according to the 52-page lawsuit filed Friday by the American Civil Liberties Union of Kentucky.
Filed in Jefferson County Circuit Court, the class-action lawsuit, which includes Planned Parenthood as a plaintiff, asks a judge to block enforcement of Kentucky’s trigger law and six-week abortion ban. She and other pregnant women who wish to no longer be pregnant are “suffering medical, constitutional and irreparable harm because they are denied the ability to obtain an abortion.”
“Jane Doe brings this action on behalf of herself and a class of similarly situated people who are now or later become pregnant and seek an abortion in Kentucky but cannot obtain one in the Commonwealth because of the challenged abortion bans,” the lawsuit reads.
“To protect the constitutional rights of Plaintiff Jane Doe and the class she represents … this Court must declare the Bans unconstitutional and permanently enjoin their enforcement.”
In a news release, Jane Doe said in a statement she was a “proud Kentuckian, and I love the life and family I have built here. But I am angry that now that I am pregnant and do not want to be, the government is interfering in my private matters and blocking me from having an abortion.”
Last summer, Kentucky’s two outpatient abortion providers sued the state after a pair of laws took effect criminalizing the health care procedure – a trigger law banning abortion in all cases except to save the life of a pregnant person, and a six-week ban, which outlaws abortion once fetal cardiac activity develops.
Planned Parenthood and EMW Women’s Surgical Center argued the bans were unconstitutional, violating a pregnant person’s right to bodily autonomy and self-determination – rights they argued were protected by the Kentucky Constitution.
The clinics in November 2022 asked the Kentucky Supreme Court to temporarily block both laws while the broader and more consequential question – does the Kentucky Constitution inherently protect a right to abortion? – was interpreted by the courts.
The highest court denied injunctive relief to the clinics in February, because a majority of justices said the providers lacked adequate constitutional standing to sue on behalf of impacted patients.
EMW and Planned Parenthood contested that Kentucky’s abortion restrictions cause harm to individuals, broadly — legally referred to as third-party standing.
Since both clinics are seeking relief for third-party individuals, in order to be recognized as having adequate third-party standing, justices concluded earlier this year that it’s necessary for both clinics to provide specific, concrete examples of the harm caused by the law, and to show there is a “genuine obstacle or hindrance” that prevents a third-party from asserting their own interest.
Justices said both clinics met the requirements of first-party standing when arguing harm from the trigger law, since a cause and effect were clear: a full-stop ban on elective abortions meant EMW and Planned Parenthood had to cease providing that service.
However, they lacked first-party standing in challenging the six-week ban, because its impact on their ability to provide service is less clear, a majority of justices said.
First-party standing, in this sense, meant finding an actual a pregnant woman actively in need of an abortion who cannot legally access one in Kentucky to demonstrate irreparable harm caused by the ban.
The highest court made sure to note its ruling didn’t preclude abortion clinics from suing the state, again, once they located a plaintiff who was directly impacted by Kentucky’s abortion bans. Until then, the question of whether Kentucky’s Constitution inherently includes abortion protections has yet to be answered, they said.
“To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion,” they wrote.
“Nothing in this opinion shall be construed to prevent an appropriate party from filing a suit at a later date.”
In its filing on Friday, lawyers for the plaintiffs said abortion was a “critical component of reproductive health care and crucial to the ability of Kentuckians to control their lives. Pregnancy and childbirth impact an individual’s health and well-being, finances and personal relationships.”
Whether to take on those risks and responsibilities of pregnancy is a personal decision “that must be left to the individual to determine for herself without government interference.”
“Pregnant Kentuckians have the right to determine their own futures and make privates decisions about their lives and relationships,” lawyers for the plaintiffs said. “Access to safe and legal abortion is essential to effectuating those rights.”
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