Brian Lehrer: Brian Lehrer on WNYC. We're in our fall election series, 30 Issues in 30 Days. Now issue number two, abortion rights as an issue in the mostly red state of Kentucky, Senate Minority Leader Mitch McConnell's home state, of course, where a very tough trigger law took effect after Roe was reversed this summer, but where courts overruled part of that and where abortion rights are now on the ballot for the people to decide directly.

Kentucky is being watched as a red state bellwether in this election. Here to discuss the Kentucky referendum and its national context, are Al Cross, Director of the Institute for Rural Journalism at the University of Kentucky's Journalism School, also a political columnist, and Caroline Kitchener, national politics reporter, covering abortion as an issue for The Washington Post. Caroline and Al, thanks so much for your time today. Thanks for coming on WNYC.

Al Cross: Glad to be with you.

Caroline Kitchener: Thanks for having us.

Brian Lehrer: Al, what was the state of abortion rights in Kentucky before the Supreme Court's Dobbs decision in June and what changed immediately as a result?

Al Cross: Well, the Supreme Court decision enacted a trigger law which had been passed in anticipation of such a decision, but then a local judge issued an injunction blocking that law. Then a Court of Appeals judge, just one single judge operating under some arcane rules, blocked that injunction, while the matter was considered by the Court of Appeals. It was taken directly to the State Supreme Court, which in a rather divided ruling, no true majority, upheld the stay of the injunction.

Abortion in Kentucky today is illegal except in cases to save the mother's life or to prevent permanent damage to a life-sustaining organ.

Brian Lehrer: We'll get to the referendum, but Caroline, where does Kentucky fit in to the national abortion rights state by state picture after Dobbs and Roe? I know you keep track of this in a running article that was updated again yesterday on The Washington Post website. Is there a group of states that were similar to Kentucky right after the ruling or that Kentucky is a part of?

Caroline Kitchener: There are. I think the running count now is 16 states that have banned all or most abortions. Some of those took effect right away, within minutes or hours or days and some of those took effect a few months after the fact in August, but now, we've really seen that initial wave. There will be more to come, almost certainly, when state legislatures come back for their sessions mostly in January, but Kentucky is part of that initial wave of states that have cracked down almost immediately.

Brian Lehrer: Al, I should have mentioned at the top when I was introducing you, that among the things you do, you're the publisher of Kentucky Health News and I saw on Kentucky Health News that despite the very restrictive abortion access environment that you just described, there were lawsuits resulting in the state courts preserving some abortion rights after Dobbs in Kentucky. Can you describe that legal battle?

Al Cross: I think I just did earlier and they didn't preserve much of anything, other than the exception of the trigger law, which allows an abortion to save a woman's life or to prevent damage to a life-sustaining organ.

Brian Lehrer: I guess I was hearing that as so restrictive that the court-- it wouldn't be considered siding with abortion rights, but I hear you. That's the context for Kentucky.

Al Cross: No, not at all.

Brian Lehrer: Did something in that state court ruling lead to this referendum being put on the ballot?

Al Cross: No, not at all. The referendum is on a constitutional amendment. We are not a referendum state, but there was some anticipation by pro-life legislators that there would be a ruling just like the one we got from the lower court judge. We have an amendment on the ballot, which reads this way. I'll just read it directly from the ballot language. "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."

This is very similar to the referendum in Kansas that was expected to be close, but turned out not to be close. The person who ran the successful campaign against that amendment in Kansas is now running the campaign against the amendment in Kentucky.

Brian Lehrer: Interesting. We'll talk about those who are campaigning against this amendment that is campaigning to preserve the possibility of abortion rights under the state constitution. How would you describe the strategy behind the wording of the referendum that you just read? Is a taxpayer funding ban in there in the hopes of getting some votes from people who might support basic abortion rights, but do not support government funding for them?

Al Cross: Perhaps. I think the principle or strategy in the wording is the phrase to protect human life. People tend to look at these referendum questions and they want something to hang on to. They want some simple phrase that will help them decide their vote. I think that's the primary strategy in the wording of the amendment.

Brian Lehrer: Listeners, anyone from Kentucky listening right now or anyone who has any ties to Kentucky listening right now and want to weigh in? 212-433-WNYC, 212-433-9692 or anyone with questions or comments for our guests for 30 Issues in 30 Days Issue number two, abortion rights in Kentucky and other red states, 212-433-WNYC, 212-433-9692 or tweet your question or comment @BrianLehrer for Al Cross from the University of Kentucky Journalism School and among other things publisher of Kentucky Health News and Caroline Kitchener, national politics reporter covering abortion for The Washington Post. 212-433-WNYC, 212-433-9692 or tweet @BrianLehrer.

Caroline, again, I'm going to ask you for some national context on what we've been hearing from Al about Kentucky and for one thing, I guess, just to state the obvious, since our previous segment was about abortion rights as an issue in the New York State Governor's race, boy, what a range we have in this country.

Caroline Kitchener: Right. Really, people say to me all the time, it feels like two Americas on this issue. I think what's interesting here, months before the Supreme Court came out with this decision, I started hearing from anti-abortion lawmakers in conservative states who were anticipating exactly this kind of ruling and how their respective states might be able to get around these really restrictive trigger bans. Everybody was really zeroing in on the Supreme Courts in their respective states and what one judge might come out and say.

For all of these legislators, the answer seemed to be, "Well, let's do a constitutional amendment." We're in a really interesting moment because that's what happened in Kansas. They did the constitutional amendment and for these anti-abortion lawmakers, it backfired. It really backfired. I think now you have a lot of anti-abortion legislators who are very nervous about what is going to happen when these measures, like the one on Kentucky, go on the ballot in November.

Brian Lehrer: How many states have referendums or other ballot questions about abortion rights?

Caroline Kitchener: Oh, it's a handful. There are a couple. Vermont, California, they have them as well. I want to say it's three or four states that have them in states where they could really make a difference, in the legislation states that would be likely to pass or potentially already have some extremely restrictive abortion ban.

Brian Lehrer: Yes.

Al Cross: It could really make a difference, Brian.

Brian Lehrer: Al, go ahead. I'm sorry.

Al Cross: You have a lower court ruling that is based on some preamble language in the constitution governing personal liberty and freedoms. It says that abortion rights should be protected, that bodily autonomy should be protected. If you look at the polls on this issue in Kentucky, most people in Kentucky oppose abortion, except in cases of rape or threat to the woman's life. There's a poll that appears in the Kentucky Health News story about that.

Our governor Democrat, Andy Beshear opposes the amendment citing those two particular examples. Now, Beshear is generally in favor of abortion rights. He does oppose so-called late term abortions, but he knows how the public feels on this issue and I think his strategy resembles that of the people in Kansas to argue that this is too extreme a proposal, that there needs to be exceptions.

Brian Lehrer: Al, for our listeners in the rest of the country, how red estate is Kentucky. Mitch McConnell, the Senate minority leader is from there. That's probably the only thing about Kentucky politics that a lot of people around the country could say from memory. Kentucky, as you just reminded us, does have a Democratic Governor, Andy Beshear. How would you characterize it in red and blue terms?

Al Cross: Oh, it's a red state, but it voted for Bill Clinton twice. It did not vote for Al Gore because it did not see him as being authentically a southerner. It has drifted more to the conservative side in the last 20 years. The fact that we have a Democratic Governor is really an anomaly. The Republican Governor preceding him made so many enemies, made so many people mad, that he was voted out by a narrow margin.

Beshear is up for reelection and this issue is one that the Republicans think they can use against him, but at this point, he's using what he would call their extreme proposal against them.

Brian Lehrer: Let's take a phone call from Joseph in New Newberg, New York, who used to live in Kentucky. Joseph, you're on WNYC. Thanks for calling in.

Joseph: Brian, this is my second time. I'm honored you taking my phone call. Your guest from Kentucky knows Kentucky used to be blue before President Obama being elected. Then the Tea Party took over the whole legislation and now we would consider being red. Kentucky's been blue because we are close to Ohio, people like their freedoms. They don't want to be government control.

We have gerrymandering doctors and the Republicans are in charge. This amendments will fail. The selection of the Democrats or Governor should tell the people Kentucky is not through red. The problem with the people that's running from Democratic Party, for example, the minority leader of Senate can be rejected if the last person would go to the coal miner that they didn't get paid for nine months. Nine months and his wife, family and Russian group, own those cool minds.

The problem with Democrats in Kentucky and this is my family is involved in politics up there, is they don't want to go head to head with these people. If somebody would've gone and said where is the Minority Leader of Senate when the coal miners in Kentucky didn't get paid for nine months? Your guest from Kentucky can't say that. I'm going to leave it with your guest, but your guest has been around for a long time and he can say that they state used to be very, very blue. Thank you.

Brian Lehrer: Joseph, thank you very much. Of course, [crosstalk] when he talks about the Senate Minority Leader, he's talking about talking about Mitch McConnell would've gotten perhaps kicked out of office by the voters, if they knew what was going on with the coal miners. Can you fact check that?

Al Cross: That was just one coal company and that wouldn't have made any difference when it came to Mitch McConnell's election. This has never been a very blue state, but it was a democratic state for a long time. In 2003 when a Republican Governor was elected, it was the state that had gone the longest without a Republican Governor. There were some sort of political accidents along the way that helped that, but essentially, we are a socially conservative state and that is what has driven the state farther to the right, as social issues become more defining about politics.

Brian Lehrer: Let me ask both of you this question, comparing Kentucky and Kansas because the national media were reporting before the referendum there, "Oh, Kansas is such a red state and the wording of the ballot question in Kansas is such that it should draw out the Republican anti-abortion rights voters and it's being put on the ballot at a time when the biggest other thing on the ballot is a Republican primary. Yes, this anti-abortion rights ballot question should pass in Kentucky," and of course, it failed spectacularly.

Then the analysis we got afterwards was that, Kansas conservatism is a libertarian conservatism. Kansas are largely concerned with keeping government out of their personal choices and so that pertains to business, which would put them on the right, but that also pertains to their bodies, which would put them more on the left in this particular context. Libertarian conservatism.

Do you think, Al, in the way you just described Kentucky as socially conservative, that it's different from Kansas in that respect?

Al Cross: It is different from Kansas. We do have a libertarian streak of Leave Me the Hell Alone, as a lot of people would put it, but I think what really drives our conservatism is religion. Various sources have figured that Kentucky is about the 12th most religious state, in terms of religious adherence. To be frank about it, we are a lesser educated state. People's culture and religion tend to be more determinative of how they vote.

Brian Lehrer: Caroline, are you looking at that question in a national context, as a national politics reporter covering abortion for the Washington Post or in a national red state context? Like some are more libertarian like Kansas and might go one way, some are more religiously based in their conservatism, like Al was just describing Kentucky? It might go another way on a ballot question like this?

Caroline Kitchener: I certainly think that these are very different states, Brian. When you look at the numbers, I just looked them up for each of these states. It's 40, the most recent polling that we have, Pew, the most recent Pew survey. It's 49% of Kansans who believe that abortion should be illegal in all or most cases and it's 57% of Kentuckians. That's an eight point difference, that's fairly significant.

One other thing that I'll say is that I remember from some reporting that I did in Kansas a few years ago, that there is this really interesting dynamic there. Within the Republican Party, there was a pretty sizable group of Republicans who were pro-choice. Some of whom were then moving over to the Democratic Party. That wasn't something that I had seen covering other states in the same way that I saw it in Kansas. I do think that Kansas is potentially unique in some ways on this question, and that's why it will be really important to closely watch these other states with similar referendums in November.

Brian Lehrer: On that point of closely watching, another political reporter covering abortion rights recently said on this show that Kentucky is really being watched closely as kind of a red state bellwether because of this referendum. I'm curious how much that's your impression too.

Caroline Kitchener: I would agree with that. I think that something we've seen since the Supreme Court decision in June are several very, very red states exhibiting some hesitancy about cracking down on abortion rights. West Virginia comes to mind, I don't want to overstate this at all because it's a very conservative state where people are largely, largely pro-life. When it came time to pass a abortion ban in late July, their initial attempt failed because the legislators couldn't agree on whether to include exceptions for rape and incest. There was a real pushback to the most extreme aversion of this total abortion ban.

Now, a version of that abortion ban has since passed and is now in effect. There are no abortions taking place in West Virginia, but I think it's interesting and for a lot of people unexpected, that these very, very red states that were thought to be just overwhelmingly pro-life and for the most extreme versions of these species of legislation, are exhibiting some signs of trepidation.

Brian Lehrer: A few more minutes in issue number two in our 30 Issues in 30 Days for Election Series. Abortion rights has an issue on the ballot in Kentucky and that in the national context of red states and abortion rights, with Al Cross, Director of the Institute for Rural Journalism at the University of Kentucky's Journalism School, also a political columnist and publisher of Kentucky Health News and Caroline Kitchener, national politics reporter, covering abortion as an issue for the Washington Post.

Let's take another caller. Steve in Brooklyn you're on WNYC. Hi, Steve?

Steve: Hi. Since Kentucky's Senator Rand Paul is a libertarian, how does his libertarian views come into play with the issue of abortion? Also, does he have any sway or influence or even a libertarian following in Kentucky that might also have an impact on this referendum coming up?

Brian Lehrer: That's a great question. Al?

Al Cross: It is a great question, but when it comes to Rand Paul, libertarianism only goes so far. It does not include abortion rights as part of his libertarian gospel.

Brian Lehrer: Where do you see the polls on abortion rights in Kentucky generally and on this ballot question so far as you know?

Al Cross: I cited some poll results without giving you numbers and I'll just give you these results from a poll that was taken both before and after the Dobbs decision, but we have to remember the Dobbs decision was leaked, so people knew what the landscape was going to be. The error margin of this poll was 4.5 points and 40% support a right to abortion if a fetus is likely to be born with serious health problems or birth defects, 28% oppose it, the rest undecided.

If a pregnancy results from rape, strong support for abortion rights, 51% to 20% oppose. If a pregnancy could harm the woman's health, but is likely to cause her death, it's much closer, 34% to 29% and remember the error margin on each of those figures is 4.5. Then we find general support for abortion bans. If a fetus can survive outside the womb, typically 24 weeks, 61% oppose abortion and 11% support it. If staying pregnant could cause the woman's death, go back to the other side, 53% support abortion rights, only 15% oppose. An incest question was not asked here, but I think incest is generally included in the rape statutes.

You have a fairly decent consensus in Kentucky that abortion rights should be limited to cases of protecting the woman's life and rape and incest. We have a six-week law, a heartbeat law, that was also stayed by the lower court judge and was put back into effect, but the trigger law is much more restrictive.

When you look at this issue nationally, I think even though the country seems to be divided into two Americas, I think the Supreme Court in 1973 pretty well defined the consensus of the country. That there should be abortion rights up to a point. It comes down to the question of where that point is. With science that point has become earlier in pregnancy, but the court, to be frank about it, went too far. It was too much of a legislature in that decision, and that in the end is why the decision was overturned.

Brian Lehrer: Do you think this ballot proposal is going to pass? In other words, that abortion rights will-?

Al Cross: I think it has a chance. I've spoken to Republicans who believe that because it doesn't have the rape and incest and threat to the woman's life exceptions, that the amendment could very well fail. The New York Times did an extrapolation after the Kansas vote-

Brian Lehrer: Let me jump in for just one second to clarify to our listeners who may not have been following this from the beginning. If the referendum passes, that's more restrictive of abortion in Kentucky. If referendum fails, that would allow more access.

Al Cross: That's essentially right. If the referendum passes, that would restrict or allow the legislature to put in all kinds of restrictions. If it failed, then the courts could hold sway and we could very well have a ruling by the State Supreme Court after the election, that upholds that injunction, which was granted on the prospect that the case being made by the abortion rights advocates was likely to prevail.

The Supreme Court delayed arguments in the case until after the election. Four members or four seats on that Supreme Court are up in this election. You had two members or one member in particular, who sort of split the the issue and didn't make a clear ruling. She's the one who is being challenged by the person who sponsored the trigger law. The referendum is mixed up in our non-partisan Supreme Court races here.

Brian Lehrer: Caroline, tomorrow in this series, we will talk congress and abortion rights and we heard the interesting Rand Paul as a Senator context here. There's also, of course, the Mitch McConnell, who's the other Senator from Kentucky and as the Senate Minority Leader context. Can you give us a quick take as a national politics reporter on this issue on Mitch McConnell's leadership in this respect, if Republicans do win control of Congress next term? I know he said something earlier this year about how a national abortion ban is possible if Republicans stay control.

Caroline Kitchener: That's exactly right. That's what he said, I think, just a few days after the leak in May. He was very quick to backtrack on that. I think it was within just a few days of making that comment and he came out and said, "Oh, no, no, no. Actually, I think this is really a decision that should be left up to the states." You've really seen a lot of Republicans take his lead on that, maybe behind the scenes, considering national abortion legislation.

Many of them, after the decision, came out and made similar statements that this decision belongs with the states and they're not super interested in pursuing legislation on the national level. Now, we did see Lindsey Graham come out with a 15-week abortion ban earlier this month that stirred up a lot of controversy and it was interesting.

Brian Lehrer: We'll talk about that a lot on tomorrow show. Go ahead and finish the thought.

Caroline Kitchener: I was just going to say that there were a lot of Republicans that didn't come out and speak in support of that. It'll be an interesting dynamic to watch going forward.

Brian Lehrer: Al, what's the home state context of McConnell going out there to the nation in his national role as Senate Minority Leader and saying an abortion ban national could pass and then backtracking?

Al Cross: I don't think there's too much home state context to it because I do not believe that Mitch McConnell will ever be on the ballot in Kentucky again. I believe this is likely his last term in the senate. His seat is up in 2026, but you have to remember that in many cases, sometimes most cases, the leader of a caucus is actually the follower. He's reflecting the views of the caucus and that specifically is what McConnell said, that, "Most of the members of my caucus," as he put it, "think this should be left to the states."

I believe that reflects the difficulty that Republicans are having finding the best political lane to operate on when it comes to this issue. They would much rather have it be left up to the states and not let Senators and representatives have to take a position when it comes to the exceptions. I think some of them have been surprised that anti-abortion advocates have been very strong and putting on lots of pressure to have bans without these exceptions, which are favored by most voters.

Brian Lehrer: Can I ask you one final question, Al, before we ran out of time? You're the Director of the Institute for Rural Journalism at the University of Kentucky and you publish a blog called The Royal Blog. I see from your Twitter feed that your most recent tweet from yesterday is most hog producers are now under contract. For our last caller from Brooklyn, your readers, a lot of them are living a very different life than that caller and his neighbors. How much do you think as somebody who covers rural life in Kentucky, that the abortion rights issue divides rural versus urban?

Do people living in rural areas in agriculture, for example, do they want their daughters to be forced into pregnancy more than people who might live in Louisville or somewhere?

Al Cross: I don't think so, but most people don't want to confront this question. I do think there is a rural-urban divide about it, but not until they get really confronted with personal circumstances. Do people really deal with it, I think in a meaningful way, otherwise, they default to their ideological or religious point of view. Increasingly, there is an urban divide, a rural-urban divide in this country when it comes to politics and these kinds of issues.

Brian Lehrer: Al Cross is director of the Institute for Rural Journalism at the University of Kentucky and publisher of The Royal Blog and Kentucky Health News. Caroline Kitchener is a national politics reporter for The Washington Post covering abortion as an issue. Thank you both so much for joining us in our 30 Issues in 30 Days segment.

Al Cross: You're welcome.

Caroline Kitchener: Thanks for having us.

Brian Lehrer: That's issue number two in 30 Issues in 30 Days. Tomorrow we will stay for one more segment on the question of abortion rights. Now we've done abortion rights in New York as an issue in the governor's race and abortion rights in Kentucky as a national bellwether for red states. Tomorrow, we'll finish up this part of 30 Issues with Congress and abortion rights, with one of Caroline's colleagues, another reporter from The Washington Post, issue number three in 30 Issues in 30 Days coming up tomorrow, Congress and Abortion Right.

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