The Kentucky Supreme Court:
Activism, Restraint, and the Right to Life
Summary of the Kentucky Supreme Court Whitepaper
For a PDF copy of the full Kentucky Whitepaper, please click here
It is difficult to characterize the current Kentucky Supreme Court since there has been significant turn-overs in the Court, including the recent departure of the extremely activist Justice Leibson,
and relatively few cases being heard in Kentucky.
Life Issues
Abortion
Although Kentucky has a strong judicial tradition of not taking positions on controversial issues, such as abortion, candidates may have greater latitude since Cary v. Wolnitzek where a federal district court enjoined enforcement of portions of Kentucky’s Code of Judicial Conduct. In the area of privacy issues, the Court has demonstrated judicial activism, as in Wasson v. Commonwealth where it held that the right of privacy exists in Kentucky and to a greater extent than afforded by the U.S. Constitution. But, some argue that the Court has retreated from Wasson’s broad conception of privacy rights since the Court did not mention them in either Yeoman v. Commonwealth, which upheld a statute relating to the collection of medical data, or Posey v. Commonwealth, which upheld the conviction of a convicted felon for keeping a firearm in his home.
Protection of the Unborn from Criminal Violence
In Commonwealth v. Morris, the Court overruled the “born alive” rule for fetal homicide, recognizing relevant advancements in medical science. Kentucky has since enacted a fetal homicide statute which includes deaths resulting from motor vehicle accidents due to intentional or reckless actions. With respect to wrongful birth, the Court in Grubbs v. Barbourville Family Health Center was unwilling to equate the loss of an abortion opportunity resulting in an impaired human life with a cognizable legal injury. Similarly, in Schork v. Huber, involving a failed sterilization procedure, the Court denied a claim of wrongful birth for lack of injury.
Assisted Suicide
Kentucky law provides that a judicially appointed guardian may make healthcare decisions for an adult patient who does not have decisional capacity and has not executed an advance directive. Although the statute does not expressly mention a guardian’s authority to compel the withdrawal of life support in the absence of a directive, the Court in Woods v. Commonwealth interpreted the legislative intent as authorizing a surrogate acting in good faith to do so, contradicting DeGrella v. Elston where the Court had declined to go this next step.
Cloning and Destructive Embryo Research
There are no Kentucky statutes on cloning and only in passing, in Morris, has the Court mentioned the issue in its discussion of the possibility that someday viability may coincide with fertilization. The Court has not addressed the subject of destructive embryo research.
Judicial Restraint
While the Court has been quite activist in the recent past, its future tendency is uncertain since all but one of the justices have only recently been elected. The Court has manifested activist tendencies especially in the areas of summary judgment [since Steelvest, Inc. v. Scansteel Service Center, Inc., it is more difficult to obtain summary judgment in Kentucky than in federal court], tort and contract. The Chief Justice seems to have the firmest commitment to textualism. Some experts predict the Court will be “moderate” in its approach.
The Court
The Kentucky Supreme Court is composed of seven justices who run for office in contested, non-partisan elections and serve eight-year terms. The Kentucky Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Kentucky Whitepaper, please click here