Two more anti-abortion bills pass in the legislature's final hours; any veto by Beshear can't be overridden

Kentucky's only abortion clinic often sees protests. (CNN)

By Al Cross and Melissa Patrick
Kentucky Health News

As it headed home Wednesday night, the Republican-run legislature sent Democratic Gov. Andy Beshear legislation that would stop most abortions in Kentucky during the covid-19 pandemic, and give Republican Attorney General Daniel Cameron power to enforce it.

One of the two bills would also require health-care providers to give "medically appropriate and reasonable life-saving and life-sustaining medical care and treatment" to any infant born alive, including after a failed abortion, and would make not doing so a felony.

Wednesday was the constitutional deadline for the General Assembly to end its session, so Beshear can veto the bills and keep them off the law books without fear of having his vetoes overridden.

"I'm pretty sure the governor's going to veto this," Sen. Whitney Westerfield, R-Hopkinsville, said of House Bill 451, to which the Senate added the attorney-general language. He also sponsored Senate Bill 9, the "born alive" bill, to which the House added the same language. It was the bill that finally passed.

The legislation deals with one of the more controversial aspects of Beshear's handling of the pandemic, his emergency order that health-care providers stop all "non-urgent, in-person" procedures. His order said the Cabinet for Health and Family Services would use the judgment of "licensed health-care professionals" to decide whether a medical procedure was urgent. Generally, medical professional groups do not consider abortion an elective procedure, and Kentucky law bans abortions after 20 weeks, creating urgency in some cases.

Cameron has frequently argued that abortion should not be considered an essential procedure, and one of the chants by protesters outside Beshear's daily briefing Wednesday was "Abortion is not essential."

The original HB 451, sponsored by Rep. Stan Lee, R-Lexington, would have merely expanded the power of the attorney general to shut down abortion providers. The Senate Judiciary Committee added authority for Cameron to block abortions under Beshear's emergency order, and the full Senate added an amendment from Sen. Ralph Alvarado, R-Winchester, to ban abortion from being deemed an urgent procedure under the order. He said it would not apply to abortions in hospitals.

The Senate passed the bill 31-2 after rejecting by voice vote an amendment from Democratic Leader Morgan McGarvey of Louisville to allow abortion in the case of a nonviable fetus, rape, incest, or threat to the mother's life. The other "no" vote came from Sen, Reggie Thomas, D-Lexington.

McGarvey said all senators know of cases where "You've gone to that 20-week ultrasound and you've gotten terrible news." When he noted that the amendment has no exceptions, Alvarado, a physician, said an abortion performed under threat to the mother's life wouldn't be done in an abortion clinic, and if it was, it would be "potential malpractice."

Under questioning from Thomas, Alvarado acknowledged that state law has a time limit for abortions. Thomas argued that that unlike typical elective procedures, "There's a clock ticking, there's a time limit when one gets pregnant. . . . This is not like a tummy tuck. . . . You have to act within a certain period of time, or your time runs out." He said the bill would impose "great difficulty on a woman who has decided legally to terminate her pregnancy" during the pandemic.

Sen. Matt Castlen, R-Owensboro, argued that the bill does what the people of Kentucky want. "We have a governor who's shutting our churches down but is letting abortion clinics stay open," he said. Beshear has banned all mass gatherings and is trying to enforce a quarantine against people who attended a church service in Bullitt County, but has not shut down any churches.

McGarvey said the bill was political because "This body has never seen fit for the attorney general to have these powers," and said if the matter was so urgent the Senate could have passed it early enough to have time to override a Beshear veto.

"I think this bill is being sent to the governor's desk so he can act on it when we no longer can," McGarvey said. "You dig a foundation with a shovel, not pitchforks. The issues we choose today should merit the moment."

Sen. Steve Meredith, R-Leitchfield, told of a man who was diagnosed with prostate cancer and was scheduled for biopsy that had to be canceled, yet abortions are allowed, he suggested, because "One of the largest supporters of our current governor's campaign for his office was Planned Parenthood."

"Born alive" bill

House Speaker Pro Tem David Meade, R-Stanford, who called for the addition of HB 451's language to the "born alive" bill, said it was needed because it wasn't fair that hospitals are not allowed to do elective procedures, while abortion clinics are allowed to.

"The hospital association is saying that our hospitals across the state are losing about $20.4 million a day by not doing those elective procedures," Meade said.

Rep. Walker Thomas, R-Hopkinsville, said 28 other states have enacted similar legislation, including Illinois, Indiana, Missouri and Tennessee.

"The Born Alive Infant Protection Act simply requires any child born alive, whether from a failed abortion attempt, a premature birth or any other delivery of circumstance, must be provided medical care," he said. "This does not establish or alter the standard of medical care and will trust the physician to make the best decision on methods of care."

He added that the bill also provides immunity from liability to parents exercising their parental rights in consenting or withholding consent for medical procedures, but provides civil action and potential disciplinary action against physicians that refuse to provide care when it is required.  The original bill was also amended to remove any reference to research so it would not inhibit ongoing research.

Asked how often such situations occur, Thomas said, "In fact, there are probably very few instances, as you are aware that abortions are disallowed after 20 weeks so there would be a very small window of some of these instances. We just want to protect that if something did happen and there is life that is outside of the womb, that it is protected."

Rep. Rachel Roberts, D-Newport, said the bill supplants the decision of a physician that an unviable, premature birth would have to be preserved at all cost, and asked if the state would pay all the cost of that care. Rep. Jason Petrie, R-Elkton, pointed to language in the bill that does not call for "all cost," but instead calls for "medically appropriate and reasonable medical care and treatment to the infant."

House Democratic Leader Joni Jenkins, R-Shively, said that SB 9 in its original form was a restatement of federal and state law, but would discourage physicians from taking care of high-risk pregnancies. "The second part . . . was an ongoing thing that we've seen in this session, in taking authority away from the governor."

Lee said no authority has been taken away from the governor or the health cabinet to regulate abortion clinics, but instead it also allows the attorney general to step in and additionally regulate and enforce the abortion laws. He said, "If it saves just one little baby's life, it is worth it."

Planned Parenthood Advocates of Indiana and Kentucky and the American Civil Liberties Union of Kentucky released a joint statement calling on Beshear to veto this legislation.

"Abortion care is essential, time-sensitive health care, yet the General Assembly wants to give the attorney general authority to seek to close abortion clinics during the current covid-19 pandemic. The General Assembly is also, yet again, seeking to criminalize the work of dedicated doctors who provide safe, legal, constitutionally-protected care,"ACLU-KY field organizer Jackie McGranahan said in the release. "Now more than ever, science and public health must guide us, not politics."