Unborn Child Dismemberment Ban goes to court

July/August 2018

House Bill 454, sponsored by Rep. Addia Wuchner, is one of the strongest bills in the nation that limits an abortion procedure.

With a trial date set for Nov. 13-17, Gov. Bevin’s legal team finds itself once again facing off with the ACLU and Kentucky’s last remaining abortion clinic. The ACLU and abortionists are fighting for the right to perform a particular type of abortion procedure which the Bevin administration calls “the brutal and grotesque practice of live dismemberment.”

And once again, Kentucky Attorney General Andy Beshear is sitting out the defense of legislation enacted by the overwhelming bipartisan support of Kentucky’s General Assembly. He claims the law “does not confer upon the Attorney General the authority or duty to enforce the provisions as enacted.”

This particularly “brutal and grotesque” procedure would be banned by House Bill 454, which passed this March with overwhelming bipartisan support in both the Kentucky House (71-11) and Senate (75-13). It was signed into law by Bevin on April 10, taking effect immediately.

The ACLU and abortionists filed their legal challenge the next day, April 11.

The June 5 preliminary injunction hearing regarding the HB 454 was cancelled because the judge preferred a full-blown trial with all evidence presented. It’s Nov. 13-17 trial date undermined the efforts of the bill’s opponents to “slow-walk” the case through the court system.

Rather than completely outlawing dilation and evacuation procedures, which courts would be more likely to strike down, HB 454 requires physicians performing them on an unborn child of at least 11 weeks post-fertilization to first cause the unborn child’s death through a method other than ripping the live child apart.

In legal filings with the court, Bevin’s legal team has argued that “HB 454 reflects the judgment of the Commonwealth’s citizens that certain abortion practices are so barbaric and gruesome as to warrant their exclusion from a civilized society.”

In recognizing that “by the end of ten weeks, the unborn child has fingers, hands, arms, toes, feet, legs, eyelids, and ears—confirming that the unborn child is in fact a human being,” the General Assembly sought to “affirm the Commonwealth’s legitimate interests in protecting the life of the unborn throughout pregnancy and respecting the integrity and ethics of the medical profession, interests recognized by the United States Supreme Court.”

Kentuckians aren’t the only ones who think the barbaric and gruesome nature of this procedure warrants exclusion from a civilized society. Alabama, Arkansas, Kansas, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia have all passed similar legislation.

Federal law already prohibits partial-birth abortion or “intact dilation and evacuation procedures,” which involve “extracting the fetus intact or largely intact and then piercing or crushing the living fetus’s skull.” That ban was upheld by the U.S. Supreme Court in 2007. Bevin’s team argues that the procedure banned by HB 454 “differs in form, but not substance.” They go on to write, “Piercing the skull of a living fetus is gruesome. So is tearing off or cutting its limbs, one by one, while it is alive.”

Bevin’s legal team appears to be prepared for a long legal battle, with their eyes on the U.S. Supreme Court. Their legal filing was filled with quotes from U.S. Supreme Court decisions and justices supporting Bevin’s position.

Excerpts from the Brief filed by Gov. Bevin’s legal team on May 8

“The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety….” The U.S. Supreme Court’s description of the Dilation and Evacuation Procedure in Gonzales v. Carhart (2007)
– page 3 of Brief

“When the doctor’s work is done, the doctor is left with ‘a tray full of pieces.’ ‘The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.’ ….In one summary of the procedure, an abortionist described observing a fetal heartbeat via ultrasound even after the extensive removal of body parts.” Quote from Justice Kennedy’s dissent in Stenberg v. Carhart (2000) – page 3-4, 6 of Brief

 “Dismemberment abortion entails tearing a living, unborn child apart, limb by limb. Such treatment would be punishable as a crime were the subject an animal rather than an unborn human. Had the fetus been born, it would assume the protections of, among other protections, the Eighth Amendment, prohibiting ‘cruel and unusual punishment.’ Even in the death penalty context, under current jurisprudence, no court would ever approve of death by live dismemberment.” – page 11 of Brief

“Here, the General Assembly’s preamble to H.B. 454 repeatedly emphasizes the state’s interest in ‘protecting the life of the unborn’ and the ‘unalienable rights’ and ‘dignity’ of human beings in general. Such brutal practices have no place in a society that holds those values.” – page 11 of Brief “According to Justice Kennedy in Stenberg, ‘[s]tates also have an interest in forbidding medical procedures which… might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus…’ One hope is that the medical community will ‘find different and less shocking methods to abort the fetus in the second trimester’—a goal recognized in Gonzales.”
– page 11-12 of Brief

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