Bills to ban abortion after 20 weeks, require ultrasound exams pass General Assembly in unusual Saturday session

Editors: The first version of this story was published Friday. It has been revised to reflect Saturday's legislative action and Monday's lawsuit.

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- In an unusual Saturday session, the House passed and sent to Gov. Matt Bevin a bill to ban abortions in Kentucky after the 20th week of pregnancy. The Senate likewise sent him a House-passed bill to require an ultrasound before an abortion.

The American Civil Liberties Union challenged the ultrasound law in a suit filed Monday, Jan. 9, claiming that it "is nearly identical to a North Carolina law that was unanimously struck down by the U.S. Court of Appeals for the Fourth Circuit in 2014," on grounds that it forces speech by the physician.

The bills have emergency clauses, so they became law as soon as Bevin signed them. The bills are part of a legislative package Republicans are moving through the General Assembly in the first week that they have full control of state government.

Senate Bill 5 is based on the widespread belief, including among some doctors, that 20-week-old fetuses can feel pain. Rep. Joe Fischer, R-Fort Thomas, said “The scientific evidence that these children feel pain at 20 weeks is overwhelming.” But that has not been established by peer-reviewed, published research.

About 1 percent of abortions occur after 20 weeks, and usually because of complex situations, Tamarri Wieder, director of external affairs for Planned Parenthood Advocates of Indiana and Kentucky, told the House Health and Family Services Committee on Friday.

The bill says it would allow an abortion "necessary to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman" if two physicians not professionally related to each other certified that in writing, in a hospital that "has appropriate neonatal services for premature infants."

In Saturday's debate, Democrats objected to the bill's lack of exceptions for cases of rape and incest and protection of the pregnant woman's mental health. "So, if she has mental-health issues, her life is not worth saving," asserted Rep. Ruth Ann Palumbo, D-Lexington.

Heather Hyden and James Earley of Lexington spoke against the bill in committee. In emotional testimony, Hyden, who is 14 weeks pregnant, told legislators that her baby has a medical condition that could either resolve itself, or cause it to die, but she wouldn't know the outcome until after the 20th week.

Hyden pleaded with lawmakers to have concern for mothers who don't find out until after 20 weeks that their child has a medical condition that would cause it to not be viable after birth, and would be "forced to carry a non-viable fetus to be born."

Rep. Darryl Owens, D-Louisville, and other representatives asked whether the bill would allow a healthy woman to get an abortion after 20 weeks if her fetus had a heartbeat but a condition that would cause it to die at birth or soon after.

The bill's sponsor, Sen. Brandon Smith, R-Hazard, kept saying it wouldn't apply in cases where the child is not viable, but he didn't address the question of a child that is alive in the womb but would not live out of the womb.

Rep. Joni Jenkins, D-Shively, asked the question again of Rep. Joe Fischer, R-Fort-Thomas, who had testified in favor of the bill. Fischer replied, "If the child has a chance to come out and be alive, well, it's going to get help with this bill. It's going to get a chance to be brought into this world and be able to be treated to have a chance at some sort of life."

Smith, asked the question after the meeting, said he only had one comment: "This was a win for little children all over Kentucky."

Fifteen states ban abortion at about 20 weeks post-fertilization, or its equivalent of 22 weeks after the woman’s last menstrual period, on the grounds that the fetus can feel pain at that age. Two of those states, Georgia and Idaho, are facing legal challenges to their laws, with Idaho's having been struck down by a federal court. Kentucky's bill provides for a legal-defense fund that could receive private contributions to a trust fund overseen by the state.

Ultrasound bill: House Bill 2 will require any women seeking an abortion in Kentucky to have an ultrasound examination to create a sonogram, a rough image of her fetus.

The technician must simultaneously explain the procedure, including the presence and location of the unborn fetus in the uterus. The ultrasound must be displayed so that the woman can see it; the heartbeat must be such that the woman can hear it; and the technician must provide a medical description of the image, but the bill allows the woman to avert her eyes from the image and to ask for the heartbeat volume to be turned off, but not to refuse the procedure.

The only exemption in the bill is for medical emergencies. The bill's sponsor, Rep. Addia Wuchner, R-Burlington, said the physician will decide what kind of ultrasound is needed, depending on the gestational age of the fetus. A transvaginal ultrasound, using a long probe, is typically done early in pregnancy and an external one is done in the later weeks.

For more on the ultrasound bill, click here.