There’s a new KY Supreme Court. Here’s how that impacts current abortion bans.

A new Kentucky Supreme Court is charged with issuing a ruling in a lawsuit challenging the constitutionality of the state’s abortion bans.

Though oral arguments took place November 15 in a case brought by the state’s two outpatient abortion clinics challenging the constitutionality of two restrictive abortion laws, the previous court did not issue a ruling in the case before its two new members were sworn in this week. Kentucky’s trigger law criminalizes abortion except in medical emergencies, and a six-week ban prohibits abortion after a fetal heartbeat is detected.

The question before the high court, spurred by a lawsuit filed by Planned Parenthood and EMW Women’s Surgical Center, is whether to reinstate a lower court’s injunction that temporarily blocked both laws from enforcement. Attorney General Daniel Cameron’s office has urged the high court not to do so.

In other words, the state Supreme Court is poised to decide whether to temporarily suspend one or both laws as the case winds through court — which would restore some amount of abortion access — or leave the laws in place.

In a Tuesday investiture in the court’s chambers at the Kentucky Capitol, Justice Angela McCormick Bisig was sworn in to replace outgoing Deputy Chief Justice Lisabeth Hughes, who retired after serving more than 15 years on the high court. Retiring Chief Justice John Minton is succeeded by Kelly Thompson, who took his oath on Wednesday. Justice Laurence VanMeter, who was already on the court, was sworn in as chief justice on Monday.

Angela Bisig, as her husband, Arnold Rivera, holds a Bible, is sworn in as a Kentucky Supreme Court justice by Chief Justice Laurance VanMeter during a ceremony in the Kentucky Supreme Court Courtroom in the state Capitol in Frankfort, Ky., on Tuesday, Jan. 10, 2023. Bisig was elected in November as the justice for the 4th Supreme Court District. Ryan C. Hermens/rhermens@herald-leader.com

Since the two new members of the state’s highest court were not present during oral arguments in the abortion case, they have be brought up to speed on the specifics of the case. But how that will happen is unclear.

“There are two ways it could happen,” said Kurt Metzmeier, University of Louisville law professor and interim director of the university’s law library: justices, themselves, could call for a second round of oral arguments, or either party could petition the court to allow them to re-argue the case.

This rarely happens, Metzmeier said, but with a case as high stakes as this one, it could. When the 1973 U.S. Supreme Court decided in Roe v. Wade that the federal constitution included protections for abortion, that decision was reached after two rounds of oral arguments to account for new justices William H. Rehnquist and Lewis F. Powell, Jr., who weren’t on the court when the case was first argued in 1971.

A perk of re-arguing the case with the new court is granting justices Bisig and Thompson the chance to ask their own questions of both parties. But more often than not, most of what justices are weighing is gleaned from filed briefs, Metzmeier said, which are in writing. Plus, the November 15 oral arguments were recorded on video.

Since there is no court precedent on the constitutionality of abortion access in Kentucky, and since law requires Kentucky Supreme Court justices not only to issue an opinion, but to explain why they issue a particular opinion, “writing a decision in a case like this is like writing a law review article; they take time,” Metzmeier said. He added that it would’ve been “unusually fast” for the former court to turn around a ruling in a little over a month, even though abortion clinics are seeking emergency relief.

The high court itself hasn’t yet said what it plans to do.

In a statement, a spokesperson for the state Supreme Court said, “The change in the composition of the Supreme Court does not impact its ability to rule on pending matters, including cases that were heard by the previous court. Although additional arguments may be scheduled if requested by the new justices, they will be able to read the filed briefs and watch recordings of the oral arguments.”

It’s also unclear what the former court accomplished by year’s end, and whether there was time to write a draft opinion the new court will now work with.

“The thing that we don’t know is what happened after oral arguments,” Metzmeier said. “Was it assigned to somebody? Did they write an opinion that was already being circulated at the end of the year? And will anything substantially change once the new justices begin to review the case?”

Tamarra Wieder, Kentucky state director of Planned Parenthood Alliance Advocates, said her group continues to anxiously await the court’s decision. In the meantime, legal abortions have all but ceased in Kentucky, according to data from the Cabinet for Health and Family Services.

No abortions were reported to the Cabinet in September; two were reported in October — one at nine weeks and the other at 16 weeks — and zero were reported in November.

“Right now in Kentucky, you cannot access abortion care, and that is extremely harmful to patients across the commonwealth,” Wieder said, adding that Planned Parenthood is “deeply concerned about what this is going to mean long term” for that level of access in the state.”

Wieder declined to say whether party attorneys will ask for a second round of oral arguments. Cameron’s office did not respond to emailed questions asking the same.

Meanwhile, the Republican supermajority General Assembly returned to session last week, but no bills related to reproductive health care access have yet been filed, even in the wake of voters’ rejection of Amendment 2, a GOP-supported bill that sought to codify a lack of abortion protections in the state constitution.

The lack of movement is, in part, because lawmakers are waiting on the high court.

“I believe there is great interest in legislation to protect unborn life,” said Sen. Whitney Westerfield, R-Crofton, “but there’s no use in drafting a bill without knowing what the Court is going to do, if anything, regarding the trigger law or abortion, generally.”

Planned Parenthood and EMW Women’s Surgical Center sued the state in late June, arguing that the right to privacy provisions outlined in the Kentucky Constitution protect an individual’s bodily autonomy and right to self-determination which by extension, includes a right to an abortion.

The clinics argue that the state’s trigger law and six-week ban violate that intrinsic right.

Cameron, a Republican gubernatorial candidate, has defended his office’s ability to enforce duly-enacted laws restricting abortion passed by the General Assembly. He continues to ask the courts to let him enforce the state’s bans, arguing that since the word “abortion” is not explicitly mentioned in the Kentucky Constitution, it is not inherently a protected right.