Two years post Roe, smaller abortion battles wage

Published 10:51 am Friday, June 21, 2024

If the Supreme Court justices thought overturning Roe v. Wade would spell the end of the abortion question, they’d be very wrong. Two years later, smaller abortion-related battles involving IVF, mifepristone and so-called “sidewalk counselors” continue.

While Kentucky has a near-total abortion ban, with an exception for the life of the mother, that hasn’t stopped politicians from weighing in on several recent reproductive issues.


Once a largely uncontroversial reproductive procedure, in vitro fertilization is now at the forefront of reproductive politics.

The procedure allows couples experiencing fertility issues to fertilize eggs and sperm outside the body to create a set of embryos in a lab. One or more of these embryos are then inserted in a woman’s uterus. Patients choose to freeze or discard the other embryos.

In February, the Alabama Supreme Court ruled that these unused frozen embryos are children, legally. This set off a flurry of IVF clinic closures, followed by quick action by the Republican Alabama state legislature to provide IVF practitioners civil and criminal immunity from destruction of embryos.

Shortly after the ruling, Kentucky Senate President Robert Stivers, R-Manchester told reporters there was discussion around protecting IVF within the Republican caucus.

“I don’t think anybody wants to impede in-vitro fertilization,” he said. “I’ve heard people that may be very strict right leaning pro-lifers in the legislature looking at bills to make sure that in-vitro fertilization is not put at risk.”

However, several proposed bills to protect IVF did not go anywhere. Louisville Democratic Sen. Cassie Chambers Armstrong filed one. She was “disappointed not to see it move.”

This month, the Southern Baptist Convention — often a bellwether for broader evangelical opinion — passed a resolution against IVF, stating that life begins at conception, even in embryos outside of the body.

Armstrong said she hopes her colleagues will listen to families in their districts that have families because of IVF.

“One of my goals is to help people understand that this is a real problem,” Armstrong said. “The things that we have seen happen in other states that have limited or eliminated access to IVF could happen in Kentucky, and we need to act.”

Sidewalk counselors

Kentucky’s top prosecutor is supporting a case involving so-called “sidewalk counselors” outside of reproductive health care clinics from the sidelines.

The case, Turco v. City of Englewood, challenges the New Jersey city’s buffer-zone ordinance prohibiting people from protesting or counseling within an 8-foot distance of the entrance of healthcare clinics.

Jeryl Turco said she wanted to hold quiet conversations with women who may be entering the clinic for abortions, and that the ordinance violated her First Amendment rights to free speech.

Attorney General Russell Coleman filed an amicus brief in the case, asking the Supreme Court to hear the challenge.

The Supreme Court has previously ruled that a Colorado 100-foot buffer zone for speaking, displaying signs and distributing leaflets is constitutional because it is content neutral. However, it also ruled in a Massachusetts case that a buffer zone law was not narrowly tailored enough to justify infringement on First Amendment rights.

Coleman’s office argued that this case is the perfect way to remedy those differences.

Louisville has a 10-foot buffer zone ordinance surrounding all healthcare facilities currently blocked by the courts. Armstrong sponsored the ordinance while on Louisville Metro Council.

“The reason that we passed that law in Metro Council was really to try to turn down the temperature, to make sure folks who were trying to access reproductive health care services could do so safely,” she said.

The Attorney General’s amicus brief touched on the Louisville ordinance.

“The Sixth Circuit found that Kentucky’s sidewalk counselors do not seek ‘to harass or protest’ but to ‘offer a compassionate ear,'” the amicus brief read. “The Kentucky case remains ongoing. As a result, the resolution of the Turco case could affect the First Amendment rights of Kentucky’s sidewalk counselors.”


Last week, the Supreme Court dismissed a case— FDA v. Alliance for Hippocratic Medicine — attempting to block access to mifepristone, a drug commonly used as medication abortion.

The dismissal was on standing, not the merits of the case. Several anti-abortion groups and doctors who had never prescribed mifepristone brought the case.

“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Justice Brett Kavanaugh said in the majority opinion.

However, several questions remain unanswered. Did the FDA wrongly approve mifepristone in 2000? Did the agency wrongly loosen regulations surrounding the drug in later years?

Armstrong said she expects a future case addressing these questions to return to the Supreme Court “sooner than we might expect.”

She also expects conversations on access to contraception, IVF and reproductive healthcare to continue.

“I’m not sure exactly what they will look like in the 2025 legislative session,” she said, “But I am quite confident that we will see laws that attempt to control women’s bodies on the agenda.”