Wednesday, November 21, 2018

Trial of lawsuit challenging legislature's attempted ban of most common type of second-trimester abortion ends after five days

A five-day trial over a Kentucky law that bans the most common method of second-trimester abortion is over. U.S. District Judge Joseph McKinley, who heard the case without a jury, did not hear closing arguments, but asked the lawyers to submit written statements within 45 days and said he would rule after reviewing them. Meanwhile, Gov. Matt Bevin's administration is not enforcing the law.

The procedure is called "dilation and evacuation," or D&E, and involves dilating the cervix and removing the fetus using suction and surgical tools. About 500 women underwent this procedure last year at the state's only abortion clinic, the EMW Women's Surgical Center in Louisville, Deborah Yetter reports for the Louisville Courier Journal.

State Rep. Addia Wuchner spoke to abortion foes outside
the U.S. Courthouse in Louisville Nov. 13, as trial began on
the suit challenging her legislation. (CJ photo by Matt Stone)
The legislation to ban the procedure at 11 weeks or after, except in medical emergencies, was filed by Rep. Addia Wuchner, R-Florence. It passed the Senate 31-5 and the House 75-13. The state was enjoined from enforcing it after the American Civil Liberties Union filed the lawsuit challenging its constitutionality.

Generally, a D&E is done after the 14th week of pregnancy. Earlier in pregnancy, a woman can take a medication to induce an abortion, or undergo a procedure in which suction is used to remove the contents of the uterus.

"Supporters of the law called the procedure, in which the fetus is removed with instruments, 'gruesome and brutal'," Yetter reports. "Opponents of the law say it would prohibit a safe and medically proven procedure, barring for many women in Kentucky their right to terminate a pregnancy."

Yetter reports that Bevin General Counsel M. Stephen Pitt said in his opening statement that women seeking the procedure could go out of state, or EMW doctors could comply with the law, which requires them to inject a solution to kill the fetus first, before performing the procedure.

The ACLU lawyers said Kentucky can't dodge a constitutional obligation by telling women to go out of state and the "proposed fetal demise procedure is unnecessary and brings risk of infection and complications including cardiac arrest to the patient," Yetter reports.

"ACLU lawyer Alexa Kolbi-Molinas said in her opening statement that none of the 'fetal demise' methods proposed by the state are medically acceptable, describing them as 'invasive, unfeasible, unreliable and in some cases, experimental.' Dilation and evacuation, she said, 'is the safest method that can be used' after the 14th week of pregnancy'," Yetter writes.

In September, Rewire reported, "Dilation and evacuation bans have been signed in nine states: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Texas, and West Virginia. Laws banning D&E procedures have been blocked or temporarily enjoined in seven states: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Oklahoma, and Texas."

Also this week, a law to ban almost all abortions after 15 weeks of pregnancy was blocked in Mississippi, with U.S. District Judge Carlton W. Reeves writing that it disregards the 14th Amendment's "promise of due process and defied the United States Supreme Court's existing precedents on abortion rights," Alan Blinder reports for The New York Times.

“With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the Capitol when it passed this legislation,” Reeves wrote. “Time will tell. If overturning Roe [v. Wade] is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”

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