Abortion Ban

AFTER 12 WEEKS 

Kentucky's unconstitutional and unenforceable criminal ban outlaws abortions performed as early as twelve weeks.  Ky. Rev. Stat. Ann. §§ 311.595 (Enacted 1998), 311.720 (Enacted 1998), 311.765 (Enacted 1998), 311.990 (Enacted 1998). 

A court held that Kentucky's ban is unconstitutional in light of the U.S. Supreme Court's ruling in Stenberg v. Carhart and has issued a permanent injunction prohibiting its enforcement.  Eubanks v. Stengel, 224 F.3d 576 (6th Cir. 2000).  The U.S. Supreme Court held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure is unconstitutional.  Stenberg v. Carhart, 530 U.S. 914 (2000).  Kentucky's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony and subjects physicians to disciplinary action by the State Board of Medical Licensure, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury.  Ky. Rev. Stat. Ann. §§ 311.595 (Enacted 1998), 311.720 (Enacted 1998), 311.765 (Enacted 1998), 311.990 (Enacted 1998). 

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

Kentucky has a partially unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after a physician, nurse, physician's assistant, or social worker orally tells her:  (1) the probable gestational age of the fetus; (2) the nature of the proposed procedure, its risks, and alternatives; and (3) the medical risks of carrying a pregnancy to term.

In addition, at least 24 hours prior to an abortion she must receive a state-mandated lecture by a physician, nurse, physician's assistant, or social worker, individually and in a private setting, that includes:  (1) she has a right to review state-prepared materials; (2) medical assistance may be available for prenatal care, childbirth, and neonatal care; and (3) the "father" of the fetus is liable for child support even if he offered to pay for an abortion.

At least 24 hours prior to an abortion, the woman must be given, if she chooses to view them, state-prepared materials that must include:  (1) the probable anatomical and physiological characteristics of the fetus at two-week gestational increments for the first 16 weeks of pregnancy and at four-week increments from the 17th week to full term, including pictures or photographs; (2) information about public and private agencies and services, including but not limited to adoption, available assistance during pregnancy, upon childbirth, and while a child is dependent, including a comprehensive list of such agencies; and (3) information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the father's liability for child support.

Ky. Rev. Stat. Ann. § 311.725 (Enacted 1998).

Although a court held that this law is constitutional, Eubanks v. Schmidt, 126 F.Supp.2d 451 (W.D. Ky. 2000), an order prohibits the state from enforcing the law to require in-person receipt of the state-mandated information and materials.  Eubanks v. Schmidt, No. 01CI01440 (Ky. Cir. Ct. Jefferson County Jan. 11, 2002) (agreed order).  The Kentucky Board of Medical Licensure has interpreted this law to allow telephone counseling and mail receipt of the state-prepared materials.  Letter from Danny Clark, President, Ky. Bd. of Med. Licensure, to Cynthia Blevins Doll (Oct. 1, 2001).

Counseling Ban/Gag Rule

Every hospital with emergency-room services shall have a physician or sexual-assault nurse available to examine survivors of sexual offenses reported to a law-enforcement agency.  Such examinations must include emergency-room treatment, evidence-gathering services, tests, and information about services for treatment of sexually transmitted disease, pregnancy, and other medical problems.  The pregnancy counseling provided to survivors of reported sexual offenses may not include abortion counseling or referral.  Ky. Rev. Stat. Ann. § 216B.400 (Enacted 1974; Last Amended 2006).

A school district shall not operate a family-resource center or a youth-services center that provides abortion counseling or makes referrals to a health-care facility for the purpose of seeking abortion services.  S.B. 192, 2008 Gen. Assem., Reg. Sess. (Ky. 2008) (to be codified at Ky. Rev. Stat. Ann. § 156.4975).

Insurance Prohibition for Abortion

All health insurance contracts, plans, and policies must exclude coverage for abortion unless the procedure is necessary to preserve the woman's life.  Coverage may be obtained only through an optional rider for which an additional premium is paid.  Ky. Rev. Stat. Ann. § 304.5-160 (Enacted 1978).

Other Anti-Choice Law

Kentucky has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.

Public Facilities Restriction

A woman may not obtain an abortion at a publicly owned hospital or other publicly owned health care facility unless the procedure is necessary to preserve her life.  Ky. Rev. Stat. Ann. § 311.800(1) (Enacted 1980).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Kentucky allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Hospitals, physicians, nurses, hospital staff members, or employees of a hospital or health care facility.

What does the refusal clause allow?  No physician, nurse, hospital staff member, or employee of a hospital or health care facility, who objects on moral, religious, or professional grounds may be required to participate in an abortion.  The willingness or refusal of a person to participate may not be a basis for liability, penalty, disciplinary action, or denial of public funds, licenses, or certifications, and no agency, institution, or person may discriminate in employment or education on these grounds unless it is a health care facility operated exclusively for the purpose of performing abortions.

No private health care facility or private hospital may be required to permit the performance of abortion contrary to its stated ethical policy.  The refusal of a private health care facility or private hospital to permit abortion may not be a basis for liability, penalty, disciplinary action, or denial or limitation of public funds.

Must the refusal be in writing?  The physician, nurse, hospital staff member, or employee of a hospital or health care facility who objects to participating must do so in writing.

Does the law require the refusing individual or entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Has a court considered the constitutionality of this law?  With respect to a previous version of this statute, a court held that private hospitals, facilities, physicians, nurses, and employees, but not public hospitals, constitutionally may refuse to permit the performance of abortions on the basis of conscience.  Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976).

Ky. Rev. Stat. Ann. § 311.800 (Enacted 1980).

Restrictions on Low-Income Women's Access to Abortion

Kentucky prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman or the pregnancy is the result of rape or incest.  KyHealth Choices Member Handbook, at 18 (Last updated Dec. 3, 2007) at http://www.chfs.ky.gov/NR/rdonlyres/F6B5F330-EE69-4CC8-83A8-1A1C0DC4BF46/0/MbrHandbookfinal.pdf; Dep't for Medicaid Servs., Hospital Services Manual, Section IV, Program Coverage, Transmittal #19, 43 (Apr. 21, 1993); Dep't for Medicaid Servs., Physician Manual, Section IV, Program Coverage, Transmittal #26, 4.30 (Mar. 30, 1999); Dep't for Medicaid Servs., Certification Form for Induced Abortion or Induced Miscarriage, MAP-235 (Feb. 2000); Dep't for Medicaid Servs., Physician's Certification Regarding an Abortion Procedure Performed for the Purpose of Terminating a Pregnancy Caused by an Act of Rape or Incest (undated).

An invalid and enjoined statute provides that a woman eligible for state medical assistance may not obtain public funds to pay for an abortion unless the procedure is necessary to preserve her life.  Ky. Rev. Stat. Ann. § 311.715 (Enacted 1980; Last Amended 1984).

In 1994, the Kentucky attorney general issued an opinion stating that the statute should not be enforced because it conflicted with federal law requiring state Medicaid programs to provide funding for the termination of pregnancies resulting from rape or incest.  Ky. Op. Att'y Gen. No. 94-4 (Feb. 2, 1994).  Two years later, a court agreed, issuing a permanent injunction prohibiting enforcement of the statute to the extent that it conflicts with federal law.  Hope v. Childers, No. 3:95CV-518-A (W.D. Ky. Feb. 2, 1996).

Restrictions on Young Women's Access to Abortion

Kentucky law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18 who has never been married or freed by court order from the care, custody, and control of her parents.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures written consent from one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the attending physician certifies in writing that a "medical emergency exists that so complicates the pregnancy as to require an immediate abortion."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  No.

Other information about the law:  None.

Ky. Rev. Stat. Ann. § 311.732 (Enacted 1982; Last Amended 2005).

Spousal Notice

A court held that Kentucky's husband notification requirement for abortion is unconstitutional.  Eubanks v. Brown, 604 F. Supp. 141 (W.D. Ky. 1984).

This law provides that a married woman may not obtain an abortion until after her husband is notified.  If it is not reasonably possible to notify the husband before the procedure, he must be notified within 30 days after the abortion.  Ky. Rev. Stat. Ann. § 311.735 (Enacted 1982).

Targeted Regulation of Abortion Providers (TRAP)

Kentucky imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Kentucky places medically unnecessary restrictions on where abortions may be performed.

Providers of any abortions at any stage of pregnancy - including private physicians - must comply with administrative, physical plant, and employee testing requirements.  Ky. Rev. Stat. Ann. §§ 216B.015(1), 216B.020(2)(b) (Original Statute Enacted 1980; Relevant Provision Enacted 1998), Ky. Rev. Stat. Ann §§ 216B.0431 (Enacted 1998), 216B.0435 (Enacted 1998); 902 Ky. Admin. Regs. 20:360.

Every abortion facility must enter into a written agreement with a hospital and an ambulance service in which the hospital and ambulance service each agree in advance to accept and treat the abortion provider's patients if complications arise.  Ky. Rev. Stat. Ann. § 216B.0435 (Enacted 1998).  Nothing in the statute requires hospitals or ambulance services to agree to enter into such agreements.

Providers are subject to unannounced inspections at any time.  902 Ky. Admin. Regs. 20:360 § 2(4)(a); Ky. Rev. Stat. Ann. § 216B.042(2) (Original Statute Enacted 1982; Relevant Provision Enacted 1994).

Restrictions on Who May Perform Abortions

Kentucky prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state to practice medicine or osteopathy, or the woman upon herself upon the advice of a licensed physician during the first trimester, may perform an abortion.  Only a licensed physician may perform an abortion after the first trimester.  Ky. Rev. Stat. Ann. § 311.750 (Enacted 1974), Ky. Rev. Stat. Ann. § 311.760 (Enacted 1974; Last Amended 1982), Ky. Rev. Stat. Ann. § 311.720(9) (Enacted 1974; Last Amended 1982).  An additional statute provides that only a physician may perform an abortion.  Ky. Rev. Stat. Ann. § 311.723(1) (Enacted 1982).  A court has ruled that this provision is unconstitutional because it conflicts with §311.760, which allows the woman to perform an abortion upon herself during the first trimester, thereby subjecting the physician and the woman to confusion and uncertainty regarding their rights.  Eubanks v. Brown, 604 F. Supp. 141 (W.D. Ky. 1984).