Inconveniently for me, Kentucky trial judge Mitch Perry issued a wild ruling against two Kentucky abortion laws on the first day of my just-completed vacation to Maine, so I’ve been delayed in highlighting the ruling’s many defects. Fortunately, Kentucky attorney general Daniel Cameron has in the meantime filed an excellent motion for interlocutory relief in the state court of appeals (as well as a motion to transfer the matter to the state supreme court). I draw on that motion’s analysis at various points throughout this post.
In his order, Judge Perry enjoined state officials from enforcing two laws, the Human Life Protection Act (which Perry denominates the “Trigger Ban”) and the Heartbeat Law (which Perry labels the “Six Week Ban”).
The Human Life Protection Act generally bars a person from committing an abortion from conception. (It provides an exception for “a licensed physician to perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”) Enacted in 2019, it states that its provisions “shall become effective immediately upon … [a]ny decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby restoring to the Commonwealth of Kentucky the authority to prohibit abortion.”
The Heartbeat Law, also enacted in 2019, bars a person (except in a medical emergency) from committing an abortion after a fetal heartbeat has been detected.
I will focus my comments here on Judge Perry’s section on “Constitutional Analysis” (pp. 10-19). I will address his larger errors in the order in which they occur.
Perry perceives two particular problems with the Human Life Protection Act. First, he argues in a single paragraph that the Kentucky legislature, by tying the law’s effective date to the overruling of Roe, “impermissibly delegated its legislative authority” to the U.S. Supreme Court. But as AG Cameron explains more fully (pp. 41-45), the state legislature did not delegate any legislative authority to the Court but instead “simply provided a triggering event for when the Human Life Protection Act took effect.”
Second, Perry claims that the Human Life Protection Act is “unconstitutionally vague” as to whether it became effective when the Court announced the Dobbs decision on June 24 or when the Court later issued its formal mandate (or judgment) to the lower court in Dobbs. But the Act itself states clearly that its provisions “become effective immediately upon [a]ny decision” reversing Roe. Perry himself states (on p. 2) that that occurred on June 24. Perry cites two state attorneys general who have construed their states’ trigger laws to be tied to issuance of the mandate. But those laws, unlike Kentucky’s, are tied to “issuance” of the “judgment.” In any event, it is difficult to see how any possible confusion between these two effective dates could justify enjoining enforcement of the Act after both of those dates have passed.
Perry finds multiple flaws with the Heartbeat Law (all of which, I gather, also supposedly infect the Human Life Protection Act, although Perry doesn’t make that clear). First, he contends that it violates a state constitutional right to privacy. But as AG Cameron spells out at length (pp. 14-32), text, precedent, and tradition defeat the notion that any state constitutional privacy right extends to abortion.
Raising arguments that even the ACLU (plaintiffs’ counsel) thought too kooky to bother with, Perry concludes that the Heartbeat Law violates state equal-protection and religious-freedom principles. AG Cameron points out Kentucky case law incorporates federal standards on equal protection, so Dobbs’s rejection of the equal-protection argument for abortion defeats the state claim as well.
Perry’s religious-freedom discussion (pp. 15-16, 19) might be the nuttiest part of his ruling. Perry contends that the two laws “adopt the view embraced by some, but not all, religious traditions that life begins at the moment of conception.” In his view, they thus “impermissibly establish[] a distinctly Christian doctrine of the beginning of life” and amount to “theocratic based policymaking.” But as AG Cameron observes:
The view that life begins at fertilization [i.e., conception] is “the leading biological view on when a human’s life begins.” … That some religious views align with the predominant view of biologists does not turn the policy judgment of the General Assembly into a forbidden establishment of religion.” [Emphasis added; quoting biologists’ amicus brief in Dobbs.]
It’s yet a further sign of Perry’s sloppiness that he thinks that the Heartbeat Law makes conception a decisive point.