Federal Judge Temporarily Blocks Kentucky’s Complete Abortion Ban

Update April 22, 4:20 a.m. PST: On Thursday, U.S. District Judge Rebecca Grady Jennings issued a ruling temporarily blocking the Kentucky abortion ban. The two clinics in Kentucky immediately resumed abortion services.

Clinic escorts stand in front of the EMW Womens Surgical Center to protect patients from anti-abortion demonstrators on May 8, 2021—Mother’s Day—in Louisville, Ky. As a result of a recent state law, the two remaining abortion clinics in the state, Planned Parenthood and EMW, ceased offering abortion services. (Jon Cherry / Getty Images)

Kentucky has become the first state since Roe v. Wade in 1973 to effectively ban all abortion services in the state. On Wednesday, April 13, the Kentucky legislature overrode Democratic Governor Andy Beshear to pass a law banning abortion after 15 weeks and placing restrictions on earlier abortions that are currently impossible to meet. As a result, the two remaining abortion clinics in the state—Planned Parenthood and EMW Women’s Surgical Center in Louisville—ceased offering abortion services on Thursday.

The law requires abortion providers to file paperwork on each abortion, but the forms don’t yet exist. In addition, providers of medication abortion must register with the state, but the state hasn’t yet set up a system to register them.

“The law is a 72-page labyrinth of very complicated restrictions that cannot be complied with until the state makes the forms and the other infrastructure necessary to comply,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “This has shut down abortion temporarily for now because it’s impossible to comply with this law.”

The law has no exception for survivors of rape and incest, nor for people for whom pregnancy poses significant health risks. The law also requires providers to report the full name, age, hometown, race, ethnicity and health status of the sexual partner of a woman who wants an abortion—even if she is a rape survivor.

The ACLU has filed a lawsuit to block the law, but until a court can rule on the case, abortion through the formal medical system is entirely unavailable in Kentucky—making it the first state to stop doctors from providing any abortion services.

This grim milestone is a harbinger of things to come if the Supreme Court eliminates the constitutional right to decide whether to continue a pregnancy in the case Dobbs v. Jackson Women’s Health Center, currently pending before the Court. The decision is due this summer. 

“There is an abortion access crisis in the United States right now and it is going to be exponentially worse in six weeks when the Supreme Court decides the Mississippi case. Roe v. Wade may be overturned in whole or it might be dismantled, and it will wreak havoc across the country,” said Amiri.

The law is a 72-page labyrinth of very complicated restrictions that cannot be complied with until the state makes the forms and the other infrastructure necessary to comply. This has shut down abortion temporarily for now because it’s impossible to comply with this law.

Brigitte Amiri

Planned Parenthood and EMW are currently working with clinics beyond Kentucky to direct patients out of state for care. In addition, the organization Plan C offers detailed information on their website about how people in Kentucky are finding abortion pills outside of the formal medical system. 

Abortion pills are widely accessible and very safe and effective. According to the World Health Organization, they can be used safely through 13 weeks of pregnancy.

Green states allow telemedicine abortion and have providers offering this service. In the yellow states, people are finding workaround ways to access abortion pills. (Created with Mapchart.net)

One option for people in Kentucky is to use the Austria-based telemedicine provider Aid Access, which offers abortion pills for a sliding scale fee of up to $105. Supervised by Dutch physician Rebecca Gomperts, telemedicine abortion through Aid Access is safe and effective with highly positive patient reviews, according to peer-reviewed researchrecently published in the leading medical journal The Lancet. Patients fill out an online form, which is reviewed by Gomperts. If a patient is eligible (which most are), she then sends a prescription to a pharmacist in India, who ships the medications directly to the patient. 

The only drawback is that delivery of the pills can take two to three weeks, although people can order pills from Gompert in advance and have them on hand in case they need them. Gomperts has served over 30,000 people in the U.S. since she began Aid Access in 2018.

Another option is to use telemedicine abortion services in other states and either pick up the pills there or use a mail forwarding service to have them sent directly to people in Kentucky. Two states bordering Kentucky offer telemedicine abortion—Illinois and Virginia. People can have the pills sent to a friend there and pick them up, or they can have the pills sent general delivery to a post office on the border nearest to where they live in Kentucky and pick them up there. Mail forwarding services such as iPostal1.com or Anytime Mailbox can also be used with telemedicine abortion services in any of the 24 states where it is currently available. People using these options can receive pills quickly—by overnight delivery or within a week using mail forwarding. Plan C has information about how people are using both of these options on their website.

Medication abortion uses two types of pills: mifepristone, which interrupts the flow of the hormone progesterone that sustains the pregnancy; and misoprostol, which causes contractions to expel the contents of the uterus. (VAlaSiurua / Wikimedia Commons)

A third option is to order abortion pills from an online pharmacy based outside of the U.S. Researchers at Plan C have vetted many of these online pharmacies by ordering abortion pills from them and testing the pills for quality. On their website, Plan C lists websites that reliably send medications, along with cost and shipping time, including Secure Abortion Pills (for $200, delivery in 14 days), Abortion Rx ($239, eight days),  Generic Abortion Pills ($291, six days), Buy MTP Kits ($301, six days) and Online Abortion Pill Rx ($480, four days). These pharmacies do not require a prescription to obtain abortion pills.

A miscarriage and an abortion are indistinguishable to an ER physician and the care is the same, so there is no reason to risk divulging more than is needed.

Dr. April Lockley

People with medical questions about abortion pills can call the Miscarriage and Abortion Hotline (M+A Hotline) (1-833-246-2632), which is staffed by volunteer physicians, midwives and nurse practitioners available from 8 a.m. to 2 a.m. EST, seven days a week, by phone or text.

Abortion pills are safer than Tylenol. Serious adverse events occur in less than one-third of one percent of medication abortions. But in the rare case where someone ends up in the hospital, medical experts say they do not need to divulge that they’ve used abortion pills. Abortion pills cause a miscarriage, so they can say they are having a miscarriage.

 “A miscarriage and an abortion are indistinguishable to an ER physician and the care is the same, so there is no reason to risk divulging more than is needed,” said Dr. April Lockley, medical director of the M+A Hotline.

There is some legal risk to using abortion pills outside of the formal medical system. Kentucky does not prohibit self-managed abortion, but extreme, politically-motivated prosecutors have in the past stretched the law in order to punish people who end their own pregnancies (mostly later in pregnancy). 

For people concerned about legal exposure, there is help. The organization If/When/How, which fights to halt the criminalization of people who self-manage their abortions, offers a legal helpline at 844-868-2812 or ReproLegalHelpline.org. People can submit questions by phone or through encrypted communication and get connected with an attorney in their state if needed. If/When/How also has a nationwide Repro Legal Defense Fund to support people who are investigated, arrested or prosecuted for self-managed abortion. The Fund provides money for bail and legal representation.

As states increasingly restrict formal medical systems from offering abortion services—and the Supreme Court threatens to overturn Roe v. Wade—these informal networks of medical and legal services are developing to assist people to safely access the services they need. 

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.