The past two years have been busy in federal courts for Kentucky’s laws that protect life and women. Not only have the ACLU, Planned Parenthood, and EMW Women’s Surgical Center sued the Commonwealth over new laws, they have begun to file legal challenges over longexisting law as well. The result is that five statutes have been challenged. Thus far, all are still being litigated. What has prompted the increase in court activity? It was the change in the Kentucky House Leadership, due to the 2016 general election.
The Ultrasound Bill
The General Assembly passed two pro-life bills in January of 2017 and Gov. Bevin signed one into law on Jan. 7, the other on Jan. 9. House Bill 2 – Informed Consent Ultrasound Bill – was the first of the two. The ACLU and EMW Women’s Surgical Center immediately challenged the law in Federal District Court in Louisville.
In September that year, Judge David Hale, a President Obama appointee, struck down the ultrasound requirement saying it violated physicians’ free speech rights. The Attorney General chose not to engage, so Bevin’s attorneys appealed the ruling to the 6th Circuit Court of Appeals. In April of this year, a three-judge panel ruled 2-1 to overturn Hale’s decision. The opinion reinstating the need for an ultrasound for informed consent prior to an abortion was written by Judge John Bush, a President Trump appointee.
On May 20 the plaintiffs (pro-choice advocates) appealed for an en banc decision by the entire 6th Circuit Court of Appeals.
Banning Dismemberment Abortion
During the 2018 General Assembly, legislators passed House Bill 454 – Human Rights of the Unborn Child Act. This bill banned the LIVE dismemberment of unborn children. Currently, dismemberment abortions are allowed on live, pre-born children. The gruesome procedure consists of tearing off body parts in utero, ultimately causing the child to bleed to death. Once the abortion is complete, a staff member re-assembles the body parts to ensure all of the baby has been removed.
After passage, the ACLU and EMW immediately went to federal court to defend the practice of live dismemberment and Judge Joseph McKinley, a President Clinton appointee, enjoined the new law – holding it until a final ruling. A bench trial was held in Western District Court, Louisville in November, 2018. On May 9 of this year, McKinley ruled that HB 454 was unconstitutional. On May 15, Bevin’s attorneys filed notice of appeal with the 6th Circuit Court of Appeals, and have pledged to go all the way to the Supreme Court. Based on the reasoning of McKinley’s opinion, some court watchers believe the decision is vulnerable to being overturned.
Transport and Transfer Statute
In September of 2018, President Obama appointee Judge Greg Stivers struck down Kentucky’s Transport and Transfer Agreement Statute. This law, which had been in place since 1998, required surgical abortion clinics to have arrangements made with an ambulance company and local hospital to transport and transfer the care of their abortion patients when emergencies arise.
Once again, Bevin appealed the federal ruling. Sixteen other states filed a joint amicus brief supporting the 1998 Kentucky statute. However, Attorney General Andy Beshear, along with 21 attorneys general from other states, filed several amicus briefs against the statute.
Then, in late March of 2019, Planned Parenthood petitioned the Court to find Bevin in contempt for not issuing an abortion facility license to them.
Non-Discrimination and Heartbeat Bills
Four pro-life bills passed the General Assembly in 2019. Two of them, House Bill 5 – Non-Discrimination Act and Senate Bill 9 – Heartbeat Bill, were immediately challenged by the ACLU in federal court. Judge Hale, the same Obama appointee who struck down the ultrasound law, has enjoined both new laws until the final ruling in district court.
Because the Attorney General has not weighed-in, each of these five bills that have been challenged and must be litigated by the Governor’s own legal team.