In a bizarre legal ruling that charged the Kentucky legislature with favoring Christian and Catholic theology, a state judge has blocked the state’s abortion trigger law as well as its heartbeat abortion ban, also known as the Six Week Ban. The July 22 ruling, in the form of a preliminary injunction, replaces a temporary order the same judge issued on June 30.

The lawsuit, brought by two abortion sellers shortly after the U.S. Supreme Court overturned Roe v. Wade in the Dobbs decision, seeks to bring abortion under the protection of the Kentucky state constitution’s provisions on privacy, self-determination, and equal protection. The abortionists also argue the two abortion laws are unconstitutionally vague.

Jefferson Circuit Court Judge Mitch Perry’s July 22 ruling agreed with all of the abortionists’ arguments that abortion is protected by the state constitution, which is bad enough.

But Judge Perry then went even further by ruling that the state legislature, in prohibiting abortion, favored the theology of Christians and Catholics, and therefore violated the state constitution’s prohibition against the “establishment of religion.”

“Section 5 of the Kentucky Constitution protects both the free exercise of religion and prohibits the establishment of a state religion. The Six Week Ban infringes upon those rights as well, but primarily upon the prohibition on the establishment of religion,” the judge wrote in his decision.

“[The state’s] witnesses at the July 6th hearing advocated for, and agreed with what the General Assembly essentially established in these laws, independent fetal personhood. They argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point.

“However, this is a distinctly Christian and Catholic belief. [emphasis added] 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.”

That’s simply a bizarre argument.

The General Assembly never said it based its abortion laws on any religion or theology. The judge conveniently ignored any of the commonly understood scientific reasons why life can reasonably be determined to begin at the moment of fertilization.

For example, the American College of Pediatricians says that “a unique human life starts when the sperm and egg bind to each other in a process of fusion of their respective membranes and a single hybrid cell called a zygote, or one-cell embryo, is created.” That moment occurs at conception, i.e., fertilization.

The American Association of Pro-Life Obstetricians and Gynecologists likewise agrees that it is a “scientific fact that human life begins at the moment of fertilization.”

These are not outliers. See, for example, here, here, here, here and here.

It’s quickly becoming fashionable to blame the Dobbs decision and opposition to abortion on religion, but liberals who seem to take pride in calling themselves the “party of science” seem to be conveniently ignoring the science of human reproduction.

So why did the judge base at least one part of his ruling on the bizarre notion that the Kentucky Assembly was favoring Christians and Catholics? Since we may never know what the judge was really thinking, we’ll have to wait until an appellate court reviews this case to see whether his reasoning – or lack thereof – stands up to closer scrutiny.

Kentucky Attorney General Daniel Cameron has vigorously defended the state’s abortion laws.

“The non-enforcement of even ordinary statutes amounts to irreparable harm,” Cameron said in a statement about Judge Perry’s original ruling. “The non-enforcement of the Human Life Protection Act and Heartbeat Law amounts to something far more grave. These laws prohibit what the General Assembly has determined is the unjustified taking of unborn human life. So every day that these laws are not enforced is a day in which unborn children of the Commonwealth perish.”

We’ll keep you updated on this highly unusual case as it proceeds through the Kentucky courts.


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