On Friday morning, Jefferson Circuit Judge Mitch Perry ruled that abortion procedures could continue in the state of Kentucky, issuing an injunction requested by two women’s health clinics in Louisville, partly because he didn’t buy the “theocratic” religious argument that life begins at conception.
Attorney General Daniel Cameron wants to use the overturning of Roe to block abortions throughout the state by enforcing the “Human Life Protection Act” and “Heartbeat Law,” which were passed by Republicans in 2019. The former would ban all abortions except to save the life of the mother and make it a crime for anyone to provide the service; it’s known as a “Trigger Law” because it was meant to go into effect if and when Roe was overturned. The latter would criminalize abortion after a fetal heartbeat is detected, around the sixth week of pregnancy, when many women don’t even realize they’re pregnant. There are no exceptions for rape or incest.
With Friday’s ruling, in favor of Planned Parenthood of Louisville and EMW Women’s Surgical Center, neither law can go into effect just yet. It should go without saying that the implementation of these laws would be disastrous for pregnant people throughout the state.
But I just want to highlight one of the issues raised by the judge. When speaking of the six-week ban, Judge Perry explained that the law could possibly conflict with the Kentucky Constitution, which guarantees a Right to Privacy, Equal Protection, and Religious Freedom.
AG Cameron’s side argued that the law that created the six-week abortion ban established “fetal personhood,” which says “life begins at the very moment of fertilization.” But Perry said that belief is really an establishment of religion by the government.
… this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being. While numerous faith traditions embrace the concept of “ensoulment,” or the acquisition of personhood, there are myriad views on when and how this transformation occurs. The laws at issue here, adopt the view embraced by some, but not all, religious traditions, that life begins at the moment of conception.
The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment. By taking this approach, the bans fail to account for the diverse religious views of many Kentuckians whose faith leads them to take very different views of when life begins. There is nothing in our laws or history that allows for such theocratic based policymaking. Both the Trigger Ban and the Six Week Ban implicate the Establishment and Free Exercise Clauses by impermissibly establishing a distinctly Christian doctrine of the beginning of life, and by unduly interfering with the free exercise of other religions that do not share that same belief.
It’s so obvious, it shouldn’t be controversial. And yet it’s not often we see it laid out so bluntly. Perry is correctly acknowledging that the (conservative) Christian view that life begins at the moment of conception, or shortly thereafter, is nothing more than a religious belief that should never be the basis for a secular law.
There’s no legitimate reason to institute a six-week ban. Nothing happens at the six-week mark. The existence of a heartbeat is nothing more than an emotional tool to manipulate people into thinking something special happened. The fetus isn’t any more viable with a heartbeat than it was without one.
That’s why Judge Perry says later in his ruling that “This is not a particularly close call.” The Kentucky General Assembly voted to implement the religious beliefs of a handful of people onto everyone in the state, and that’s a direct assault on the Constitution.
Or at least that might be a valid argument. Perry didn’t rule on the merits here. He merely said the lawsuit against the state (by the women’s health groups) could proceed—and, in the meantime, abortions remain legal in the state. It’s a temporary reprieve at the very least.
The arguments in play here are not going away. While there may be secular arguments against abortion in general, the “fetal personhood” and “heartbeat” arguments have no basis in science or secularism. They’re religious arguments at their core—specifically Catholic and conservative Christian ones—and that’s as good a reason as any for why no judge, in Kentucky or anywhere else, should take them seriously.