Explainer: Kentucky puts anti-abortion measure on 2022 ballot

April 2, 2021

On Tuesday, the Kentucky state legislature passed House Bill 91, a measure that will allow voters to decide the No Right to Abortion in Constitution Amendment in November 2022. Kentucky’s Democratic governor, Andy Beshear, has vetoed anti-abortion legislation in the past, but he does not have the authority to veto proposed constitutional amendments.

The question that will be put on the ballot in November 2022 asks: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: ‘To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?’”

If Kentucky voters approve the amendment, the state’s constitution would then pre-empt any court ruling that could legalize abortion in the state if Roe v. Wade is overturned. “HB 91 simply assures that no Kentucky court will ever be able to fashion an implicit right to abortion from the language of our state Constitution,” said Rep. Joseph Fischer. “There will be no Roe vs. Wade decision in Kentucky.”

Pro-life groups in the state praised the measure for allowing citizens to have a say on the issue of abortion. 

“Kentucky Baptists are grateful for the leadership of Senate President Robert Stivers, House Speaker David Osborne, Rep. Joe Fischer and their colleagues who allowed this constitutional amendment to move forward so the citizens of the commonwealth can let their views be known,” said Todd Gray, executive director-treasurer of the Kentucky Baptist Convention. “We continue to pray for the day when legalized abortion, the greatest human rights atrocity of our day, will be abolished in Kentucky.” Fischer clarified, though, that the law would not block the legislature from passing laws making abortion legal in the state

Lawmakers in Kansas passed a similar measure in January. The Kansas amendment would reverse a 2019 decision by the Kansas Supreme Court that ruled there was a right to abortion in the Kansas Bill of Rights. According to Ballotpedia, the amendment would add a section to the Kansas Bill of Rights to state that there is not a right to abortions, and the government is not required to provide funding for abortions. The new section would also add that the state legislature has the authority to pass laws to regulate abortion. 

Currently, four states have constitutional amendments declaring that their state’s constitution does not protect any right to abortion or require the funding of abortion. Tennessee was the first state to pass such a constitutional amendment in 2014, followed by Alabama and West Virginia in 2018 and Louisiana in 2020. Arkansas has a similar constitutional amendment, passed in 1988, that says, “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”
Ten states—including Kansas—have court rulings that declare the state constitution provides a right to abortion. The list of states where courts have made such rulings are Alaska, California, Florida, Iowa, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico.