Legislature passes four abortion bills in last days of session, likely to pass one more; federal judge blocks two of them (updated)

Gov. Matt Bevin, shown speaking at a Right to Life event, is taking credit for the legislative action.

By Melissa Patrick
Kentucky Health News

Since Republicans took complete control of Kentucky lawmaking in 2016, the General Assembly has passed several bills to restrict or eliminate abortion, and this year is no different. Four anti-abortion measures passed in the last days of the session and one more is likely to pass on the final day, March 28.

The bills take several measures to limit or monitor abortions in Kentucky, but the centerpiece is one that would ban abortion once a fetal heartbeat is detected, around six weeks of pregnancy.

Part of the impetus for that bill is the hope that two new Supreme Court justices could lead to the reversal of Roe v. Wade, the court's 1973 decision creating a limited constitutional right to abortion.

The legal process quickly followed the legislative process. Immediately after Gov. Matt Bevin signed one bill into law, the American Civil Liberties Union of Kentucky filed a lawsuit on behalf of EMW Women's Surgical Center in Louisville, the state's only remaining abortion provider.

Hours later, U.S. District Judge David Hale of Louisville granted the ACLU's request for a temporary restraining order blocking enforcement of the law banning abortion of a fetus with a beating heart.

"The heartbeat is the first sign of life and it is the last thing that you will hear when a person dies," Rep. Chris Fugate, a Republican from Chavies in Perry County, said on the House floor as he managed Senate Bill 9, sponsored by Sen. Matt Castlen, R-Owensboro, to passage on a 71-19 vote.

One of the "no" votes came from Democratic Rep. Chris Harris of Pikeville, who described himself as pro-life. He said the bill's constitutionality had already been decided, the state was already a defendant in three other lawsuits over other abortion bills, and "We have a responsibility to the people to not waste their money."

The ACLU says every "heartbeat" bill passed to date has been overturned in state or federal court. Kentucky is the second state this year to enact such a near-total ban on abortion, but the first to take effect, because SB 9 had an emergency clause. Mississippi's law will go into effect July 1. (Rewire.News offers a legislative tracker for abortion bills in the 50 states.)

Opponents of "heartbeat bills" say they are unconstitutional, near-total bans because most women don't know they are pregnant until after six weeks of pregnancy, and ultrasounds to determine the health of a fetus aren't typically done until the 14th week of pregnancy.

"There are no exceptions for rape, incest, fetal anomalies, or if there is a tragic condition with the fetal anomalies," said Tamarra Wieder, the public affairs and policy director for Planned Parenthood of Indiana and Kentucky.

The bill passed the Senate 31-6 on Feb. 14. The House rejected an amendment from Rep. Jason Nemes, R-Louisville, that would have allowed abortion of a fetus that was medically determined to be incompatible with life outside the womb.

Rep. Robert Goforth of East Bernstadt, who is challenging Bevin in the May 21 Republican primary for governor, filed a measure similar to SB 9, House Bill 100. "My bill's been held hostage and passed over and not heard because of politics," he told the House as he supported SB 9.

Bill would ban discriminatory abortions

The other bill targeted by the ACLU lawsuit, and the first of the four to pass, would ban abortion for women seeking to terminate a pregnancy because of an unborn child's sex, race, color, national origin or the diagnosis or potential diagnosis of Down syndrome or any other disability.

House Bill 5, sponsored by Rep. Melinda Gibbons Prunty, R-Greenville, passed the House Feb. 26 on a 67-25 vote and the Senate March 13 by 32-4. It will become became effective immediately upon Bevin's expected signature March 19. He published an article March 11 saying that the effort to pass anti-abortion bills was led by his administration. UPDATE, March 20: Judge Hale issued a temporary restraining order blocking the law.

Prunty told the House that HB 5 is a "common sense" measure because allowing abortions for any of these reasons is "reminiscent of the social evil of eugenics," the science of improving a human population by controlled breeding to increase the occurrence of desirable, inheritable characteristics.

Sen. Ralph Alvarado of Winchester, who presented the bill in the Senate, repeated that point, which Bevin has also made. Alvarado is Bevin's running mate for lieutenant governor.

Sen. Reginald Thomas, D-Lexington, unsuccessfully offered an amendment for lifetime coverage of medical expenses for children born with certain disabilities. He said, “I cannot comprehend how we want to bring life into this world with a child who has the disabilities I have enumerated, and then abandon that child once that child comes into this world.”

ACLU spokeswoman Brigitte Amiri said in a press release on the bill, “Decisions about whether to end a pregnancy must be made by the woman and her family. But this law takes the decision away from them and hands it over to politicians. Kentucky women must be able to have private conversations with their health-care providers, and must be able to decide whether to have an abortion.” She said the bill is part of a campaign to ban all abortions.

Other bills

House Bill 148, sponsored by Rep. Joseph Fischer, R-Fort Thomas, would ban all abortions in Kentucky if the Supreme Court overturns Roe v. Wade. It passed the House with Feb. 15 on a vote of 69-20 and the Senate on March 14 by 32-5.

Such bills are called "trigger bills" because the legislative action would take effect only constitutional law changes. The ACLU says "trigger laws" have been filed in seven states this year.

Fischer told the House, “Abortion is not a divisive issue in this state; the people of Kentucky are overwhelmingly against abortion. House Bill 148 will serve as a message from the people of Kentucky to the Supreme Court and every other state ... if you allow us to protect life, we will protect all unborn life.”

But freshman Rep. Patti Minter, D-Bowling Green, said the bill was premature. “It does nothing to advance any policy objectives,” she said. “We should not be in the business of passing a bill now that may or may not be valid, depending on what might or might not get handed down by the Supreme Court.”

Senate Bill 50, which would require health-care providers to report any prescriptions used to induce an abortion to the state Vital Statistics Branch, is also on its way to Bevin, with an amendment that would require providers to tell patients who take these medications that the abortion can be reversed — information that the American Congress of Obstetricians and Gynecologists says in an August 2017 fact sheet is "unproven and unethical."

The bill, sponsored by Sen. Robby Mills, R-Henderson, passed the House 75-19 on March 13. The next day, the Senate accepted the amendment and passed the revised bill 31-4. The vote on the original bill, in January, was 30-6.

"With the passing of these four bills, we basically now have zero access and zero exemptions," Wieder, of Planned Parenthood, said Friday. "What we saw on the floor last night was simply callous, to deny even exemptions for families where the fetus will not survive to birth and there cannot be any exemptions even for their circumstances. I think that actually speaks to all of these bills, especially Senate Bill 9, that there is no concern for the lived experiences of women and families in the Commonwealth."

Still pending is Senate Bill 227, sponsored by Sen. Whitney Westerfield, R-Hopkinsville. It would require physicians to try to save the life of an infant born alive after a failed abortion attempt. It is similar to the federal "Born Alive Infant Protection Act," which failed in the U.S. Senate last month.

Westerfield's bill passed the Senate Feb. 28 on a 32-0 vote and could pass the House on March 28, the day set aside for reconsidering bills Bevin may veto — or bills that he wouldn't.

Wieder said the bill isn't necessary because "there is no such thing as abortion after birth. . . . This is not medical practice." But she voiced concern that the bill would require life-saving care for babies who are not expected to survive, regardless of parental wishes.

Bevin's role

Wieder said of Bevin, "He is using rhetoric to stir up emotion and anger and fear out of a place that is not even from reality and that is a problem with so many of the conversations around abortion."

In his article, Bevin wrote, "As long as the Bevin administration exists, we will fight with all of our intellect, our talent, and our heart to defend the innocent. We will fight for life."

Citing the recent abortion laws passed in New York and Virginia, he wrote, "We now see that the true agenda of pro-abortion advocates across this nation is the mass murder of innocent babies, even after they have been born and are crying for their mothers" and that "pro-abortion radicals are even suing for the right to dismember a third-trimester baby."

Wieder said, "The idea that the bills in New York and Virginia somehow allow women and families to have an abortion up to or until a person gives birth is flat-out untrue. That's not how medical care works, and it's irresponsible to imply that. We all know that the vast majority of abortions occur very early in pregnancy and the ones that occur late in pregnancy are because of severe fetal anomalies, the baby won't survive out of womb or the woman is at risk. They are almost exclusively because the mother's health is at risk, a woman's life is at risk or the baby cannot survive."

Kentucky lawmakers have passed two abortion statutes that were recently struck down by federal judges: an old one that required abortion clinics to have signed agreements with a hospital and ambulance service, and a recent one to require providers to perform an ultrasound, describe it and show it to the patient prior to an abortion. The state is appealing both rulings.

A third case involves a 2018 law that would ban the most common type of abortion, known as "dilation and evacuation" at roughly 11 weeks of pregnancy or after. The case was heard in the U.S. District Court in Louisville last year and awaits a decision from the judge.