With Supreme Court nominee Brett Kavanaugh’s confirmation vote looming, pro-choice progressives and anti-abortion fundamentalists alike anxiously anticipate the future of abortion rights. Kavanaugh’s predecessor, Justice Anthony Kennedy, was a swing vote on reproductive issues for decades and abortion rights advocates worry his absence could spell the end of Roe v. Wade.
Regardless of whether Kavanaugh takes the court, a future without abortion access is increasingly possible in Kentucky.
“We have a crisis of access in Kentucky even though Roe is in place. Obviously it can get much worse than it is, but we’re down to one clinic whose license is being challenged,” said Amber Duke, communications manager for ACLU-KY. “There’s so many ways that abortion access nationally can be chipped away without Roe going away.”
The legislative restrictions eroding access in Kentucky are plentiful. There’s the informed consent law, which requires patients to have a face-to-face consultation with a doctor—either in person or by video chat—at least 24 hours before an abortion. There are parental consent requirements for women under 18, unless excused by a judge. There’s a currently in court ultrasound law where doctors are required to narrate fetal development to the patient and make the heartbeat audible, regardless of whether she wants to hear it. There are no abortions after 20 weeks, a law based on the pseudoscience of fetal pain.
And the ACLU-KY is fighting Kentucky Gov. Matt Bevin’s proposed ban of the most common form of abortion after 15 weeks of pregnancy.
“The bottom line is that the law would prohibit this procedure from being used in Kentucky given the doctors and the resources that they have available here,” Heather Gatnarek, a lawyer for ACLU-KY, told The Daily Beast. “Any abortion after about 15 weeks, the woman would have to go out of state.”
Experts told The Daily Beast going out of state is not always an option for those with a low income, who work hourly jobs and can’t afford to take time off, or who have other children to care for. Furthermore, the rapid closing of abortion clinics nationwide has left patients with fewer options.
Kentucky is one of seven states with one abortion provider and is flanked by two others: Missouri and West Virginia. Clinic escort volunteers at EMW, Kentucky’s only abortion clinic facility, told The Daily Beast that it’s common for Kentuckians to travel up to five hours each way the day of their appointment.
Those traveling out of state are burdened with longer trips.
Being “burdened” has been a controversial term surrounding abortion since 1992, when the Supreme Court ruled that states may not create laws that create an “undue burden” on women seeking abortion.
An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
What constitutes an “undue burden” is often debated. Since the ruling, eight of the nine abortion clinics in Kentucky have closed.
Most recently, EMW’s Lexington clinic location closed in January 2017 after a six-month medical licensing battle coupled with the landlord refusing to renew the lease.
Gov. Bevin, who has described himself as “unapologetically pro-life,” has been vocal about his intent to make Kentucky the first state without an abortion facility.
Specifically, a current case concerning “transport and transfer agreements” could shut EMW’s doors for good.
Transport and transfer agreements are signed documents between a clinic and an ambulance provider, or a clinic and a hospital, outlining that in the need of emergency care, the ambulance or hospital agrees to accept patients from the clinic.
“As anybody with any modicum of sense knows, hospitals will always treat patients who need emergency care. There’s a federal law requiring them to. And ambulance companies, by their very design, will transport patients in need of emergency care,” said EMW’s lawyer, Heather Gatnarek.
In other words, the agreements are unnecessary.
In March 2017, EMW got a letter from the state, explaining the cabinet felt there were deficiencies in the transfer agreements, and because of that, the clinic’s license would be revoked in 10 days unless addressed.
The ACLU filed a temporary restraining order turned preliminary injunction, so the clinic is able to keep its license through the duration of the case.
“The deficiencies honestly weren’t rational,” Gatnarek said. “It was things like the ambulance company didn’t state with enough specificity that the patient would be delivered to the hospital.”
EMW has had an agreement with the University of Louisville hospital for years. Suddenly, though, the state was disputing who was qualified to sign the agreement from the hospital, and the clinic was met with hesitation from the University of Louisville.
“Planned Parenthood [which partnered with EMW on this suit] presented at trial a lot of the pressures being put on University of Louisville to not sign this agreement. There was an insinuation at one point that UoL would lose funding from the state,” Gatnarek said.
“This is not a question of women getting the care they need,” she continued. “It’s not a question of women’s lives being in danger. It’s a question of administrations unrelated to the care on the ground. Administrations giving them the runaround. Moving the goal post at every stop.”
Aside from legal restrictions, women seeking abortion in the Bluegrass State face more obstacles.
One is cost, another is distance.
“The least expensive is the medication abortion that’s $650,” said Kate Cunningham of A-Fund, an organization that provides financial aid for abortions. “The earliest [pregnancy term] surgical abortion is $750 and can be more if you need the RhoGAM shot [an injection that prevents some women from creating antibodies while pregnant]. The big late-term abortions [outside of Kentucky] can be a couple thousand dollars. It’s really expensive.”
A-Fund provides block grants to the Kentucky clinic and for neighboring states, as the pairing of restrictions and closing clinics narrows the window of access in Kentucky. With less options, women are often driving across state lines for an abortion.
Cunningham recalled a Kentucky woman who contacted A-Fund for an appointment for an abortion in West Virginia, about an hour away, only to discover her pregnancy was too advanced to have the procedure in that state. She was then referred to a clinic three hours away in Dayton, Ohio.
“It’s punishing,” Cunningham sighed. “It’s horrible what women have to go through.”
Despite this, Cunningham has hope. “Women will get the care they need, whether they have to drive further or fly further, they will. There’s enough good people to help them fund it.”
Kentucky Health Justice Network is one such organization. KHJN partners with A-Fund to assist in funding abortions to women who can’t afford them, as well as providing transportation, housing, and interpretation for women seeking abortion services.
“When I’m on the [KHJN] hotline, we get the majority of our calls from Lexington, Florence... not just Louisville,” Ashley Jacobs, an employee at KHJN said. “They don’t have anywhere else to go.”
Getting inside the clinic safely is a huge hurdle Kentucky women face.
The sidewalk outside Kentucky’s abortion clinic has daily protesters who walk alongside each patient entering the clinic, pleading for her to reconsider. While most of these protesters are non-violent, there have been physical attacks on the clinic itself and last year 11 protesters were arrested after blocking the front door.
The blockade was orchestrated by members of the militant pro-life group Operation Save America. Two months after the blockade, the same group held a week-long string of protests in Louisville.
This time, a federal judge stepped in to enact a temporary buffer zone for women to enter the clinic without harassment during OSA’s residency.
With a conservative-leaning Supreme Court on the horizon, these kinds of protections are unlikely to continue.
Ashley Carroll, 22, an organizer with Louisville Safety Zone, is already facing challenges in an effort to make that buffer zone permanent.
“There’s a lot of pushback from the Louisville Police Department—they don’t think it’s a necessary legislation right now because they do have a presence there,” said Carroll. “The safety zone would actually make their lives easier; they would have more control in a situation with extreme protesting.”
Generally, there is a police presence at EMW only on Saturdays, the busiest day of the week for patients and protesters. One volunteer escort described the police presence at the clinic as “aggressively centrist to the point of inaction.”
“It would make it a lot easier for patients to feel safe and secure when accessing health care.” Carroll said of the safety zone. “We’re really promoting it on a public safety forefront.”
Anne Allen, a reproductive rights activist with A-Fund and KRCRC, agrees the safety zone is critical. “The Louisville committee has a very modest proposal: an eight-foot wide safety zone stretching from the curb to the entrance of the clinic, just wide enough that a car could pull up to the curb and drop somebody off.”
The problem, Allen said, is that city government officials don’t want to commit to a polarizing bill relating to abortion, fearful of alienating constituents.
“What’s at stake isn’t whether or not you believe in abortion. It’s a volatile situation. You have these protesters—and most of them are harmless—but there are some of them that are really aggressive.”
The right to free speech versus the right to free privacy has been debated at length surrounding the debate for a buffer zone. Kate Cunningham of A-Fund says the two aren’t mutually exclusive.
“I respect the right to dissent and peacefully assemble,” Cunningham said. “But to harass women going into a doctor’s office is really beyond the pale and there has to be some zone of safety for them.”
“God forbid, I don’t see it happening until there’s blood on the sidewalk,” she added. “That’s what we’ve been trying to prevent.”
The mounting legislative hurdles of the last two years can be attributed to Bevin and a subsequent Republican takeover of the Kentucky House in 2017. With a conservative rule in a bible belt state, it’s likely that the restrictions will continue unless there’s a Democratic shift.
Honi Marleen, a volunteer with the Reproductive Rights for Kentucky PAC explained the current legislation is dismal. “We’re back in 1950,” she said.
“Kentucky is almost 52 percent women, they’re not being represented right now,” Marleen said.
“If we get more women elected—more pro-choice women—then so many things happen. We get a kinder government, a government who’s willing to work. It becomes less partisan, it becomes less hostile. It brings to the table more representation of the population.”
With legislative hurdles, increasing restrictions and a daily presence of protesters outside Kentucky’s lone clinic, it’s difficult to remain optimistic.
“I don’t think there’s going to be a happy ending here,” said Anne Allen. “In the short run, I think the same conditions will continue or conceivably get worse. It is conceivable that the clinic in Kentucky will be forced to close, then A-Fund will be forced to pay women to go out of state.”
“There will never be a time when abortion will completely unavailable, because if Roe v. Wade were overturned—and that’s the extreme case—there would still be states that would enact or maintain access to abortion,” Allen said.
“Women are gonna get abortions. They always have, they always will.”
Anne Ahola, the director of the state’s last abortion clinic, remains hopeful.
“I have to remain optimistic,” she said. “Whether it’s our country in general or what’s going on [in Kentucky], you just have to wait for better times.”