Amendment 2 and the Attorney General’s Attempts to Ignore the Voice of the People

When the Kentucky General Assembly proposed an amendment to the Kentucky Constitution removing any inferred right to abortion, many believed that Kentucky would quickly pass the measure. Pro-choice advocates crossed their fingers, hoping Kentuckians would reject the proposal–listed as Amendment 2 on last year’s ballot– and its radically anti-abortion language. When the votes were finally tallied, 52 percent of voters delivered a message in defense of privacy rights. Anti-abortion politicians were forced to reconsider their perceptions of public opinion and realize that a constitutional amendment of this nature ran contrary to the will of the people.

Unfortunately for Kentuckians, the state Attorney General’s office has failed to come to terms with this truth. Rather, it has entrenched itself in the attempted resurrection of this failed initiative and has filed a motion with the Kentucky Supreme Court defending the rejected constitutional interpretation. On November 9th, in defense of the General Assembly’s blocked trigger law and six week ban, Attorney General Daniel Cameron filed a motion with the Kentucky Supreme Court arguing that Amendment 2’s Election Day defeat should be ignored and that the decision on abortion’s legality should lie solely with the General Assembly.

According to the Attorney General’s office, the Amendment itself was an attempt to “foreclose an argument that our Constitution implicitly protects the right to abortion.” In other words, the General Assembly sought to end the debate on their abortion laws before it could begin. These concerns were realized in July when the measures came before Jefferson County Circuit Court Judge Mitch Perry. Perry instated a temporary injunction on both bans arguing that there was probable cause to believe that the rights of people seeking abortions were being violated. Additionally, Judge Perry held that the right to privacy guaranteed by the Kentucky Constitution is even more expansive than that found in the Federal Constitution and that the bans betrayed this right.

In his appearance before the Kentucky Supreme Court on November 15th, Solicitor General Matt Kuhn argued that the General Assembly is the best representative of Kentuckians views on abortion, stating that it is the legislature and not the Court that is “most responsive to the people.” The venue for Kuhn’s argument belies his flawed logic, however. When the very people he claims the legislature to be most responsive to strike down a proposal, why does the Solicitor General go to an allegedly LESS responsive branch of government requesting a new-and-improved outcome? How can one contend to be the best representative of democracy but then disagree with and work against democracy’s results?

Solicitor General Kuhn attempts to explain this contradiction with an equally confounding answer. The Attorney General’s office makes the distinction that it was an attempt to add language that was voted down, thus leaving it to the Court to decide whether the Constitution as it currently stands does not have any inferred right to abortion. “What I would suggest,” Kuhn said, “is that the decision not to add words to our constitution does not change the meaning of the words that are already there.”

Kuhn’s words are a clever attempt to ignore the reality of what Amendment 2 was. Its language – “nothing in this Constitution shall be construed to secure or protect a right to abortion” – was itself a constitutional interpretation, one which the voters rejected. 

Ultimately, a constitution  must be a reflection of the values of the people it represents. The purpose of a proposed ballot amendment is to gauge the support of voters. When an idea is rejected, it tells lawmakers they need to return to the drawing board. If the legislature and the Attorney General are going to ignore the results of this amendment and instead carry on with aggressive bans and legal efforts to remove the right to abortion, what was the point of voting in the first place?

While it is clear that a majority of Kentucky voters do not favor universally restrictive language being added to the Kentucky Constitution, it is not clear that voters are in favor of providing expanded abortion access, as some were quick to claim after the votes were tallied. It is more appropriate to say, however, that Kentuckians have recognized that thoughtful discussions can and need to be had on the issue of abortion. Both halves of the electorate must come together to negotiate a satisfactory set of policies that more clearly and fairly answer the question of privacy rights than the legislature’s overly aggressive solutions. Amendment 2 and the recent motion from the Attorney General were merely attempts to avoid these debates and halt any further discussion that might yield progress.

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