2 anti-abortion bills are sent again to Beshear, who vetoed them last year as time ran out; opponents still say neither is necessary

By Melissa Patrick

Kentucky Health News

Two abortion-related bills are on their way to Gov. Andy Beshear's desk. One would require "medically appropriate and reasonable life-saving and life-sustaining medical care and treatment" be provided to any infant born alive, including after a failed abortion. The other gives anti-abortion Attorney General Daniel Cameron new power to provide oversight of abortion care providers. 

Similar measures were in a single bill that passed in the last legislative session, but was vetoed by Beshear. Legislators were unable to override him because they passed it too late in the legislative session, but made the legislation a priority in the first week of this session.

Rep. Joseph Fischer

House Bill 2, sponsored by Rep. Joseph Fischer, R-Ft. Thomas, would give the attorney general concurrent authority, along with the Cabinet for Health and Family Services, to enforce the state's abortion laws. 

It also says that under any state of emergency declared by the governor in response to the novel coronavirus, the state cannot deem an abortion to be an "emergent or urgent medical procedure," as the cabinet has done. 

Fisher told the Senate Judiciary Committee Jan. 8 that the measure is necessary because Beshear showed no interest in enforcing the state's abortion laws when he was attorney general, vetoed the bill once and allowed abortions during the pandemic, while suspending some other medical procedures. 

"In recent years the General Assembly has passed some of the strongest pro-life legislation in the nation, but unless we have someone to defend and enforce those laws, they are meaningless," Fischer said. 

The American Civil Liberties Union of Kentucky opposed the bill at both judiciary committee meetings, and said in a news release that it is not about improving health and safety, since it only gives the attorney general authority over abortion providers and none of the others regulated by the cabinet. 

"Abortion providers are heavily regulated in the state," ACLU-KY Reproductive Freedom Project strategist Jackie McGranahan told the House Judiciary Committee Jan. 7. "This bill is a blatant power grab and an obvious attempt to enact the General Assembly's and the attorney general's anti-abortion agenda." 

After the bill's final passage, Tamarra Wieder, state director for Planned Parenthood Advocates of Indiana and Kentucky, said the Republican "supermajority’s unprecedented attempt to shift control out of the Cabinet for Health and Family Services, and place health-care decisions under someone without a medical background, is a dangerous game to play with people who are already trying to survive the economic, social and racial issues compounded by Covid-19."  

HB 2, which has an emergency clause, was the first bill to gain approval in the legislative session. It passed the House 75-18 on Jan. 7 and the Senate 30-5 on Jan. 9. 

Sen. Whitney Westerfield

Senate Bill 9, sponsored by Sen. Whitney Westerfield, R-Crofton, would require that an infant born alive be given medically appropriate care. Health-care providers who fail to do so could have their licenses revoked or face a felony charge.

During the Jan. 7 Senate floor vote, Sen. Karen Berg, D-Louisville, said she was concerned that the bill would tie the hands of medical providers during miscarriages, forcing them to try to save an infant not mature enough to survive. 

“As a practicing physician who understands better than most in this room the limits of what medicine can and cannot do,” she said. “I cannot vote for a bill that requires for a physician to do something that is not doable.”

The next day, at the House Judiciary Committee meeting, Dr. Brittany Myers, an obstetrician-gynecologist in Louisville, testified "strongly against" the bill on behalf of the ACLU, explaining that it would only apply to miscarriages in Kentucky, since abortions can't be performed after 20 weeks of pregnancy. Before that, a fetus is not viable, she said. 

She added that there are already standards of care for physicians to follow to care for a child that is born prematurely. 

“The biggest takeaway I want you all to have from this is that this bill does not address any real-world problem in the setting of abortion care in the state of Kentucky. . . . This bill’s intent, I believe, is to shame patients and threaten providers and further limit access to abortion care, but I actually think what it will ultimately end up doing is changing the practice and handcuffing both general OB-GYNs and neonatologists and pediatricians by forcing them to intervene and resuscitate what this bill is calling a born-alive infant, but in actuality in what is medical terms is referred to as a non-viable fetus.” 

Westerfield said, "“We’re not asking for extraordinary measures. We are asking for medically appropriate and reasonable measures.”

During the Jan. 9 House floor vote, Rep. Kimberly Moser, R-Taylor Mill, who was a neonatal intensive-care nurse for many years, said that in her experience it was not possible to know if an infant was non-viable until after it is born, and that a decision to try to save that child needed to be made at that time, as opposed to making that determination based on an estimated gestational age. 

"This legislation is not a requirement that medical procedures which are considered extraordinary are undertaken, but the infant should be given the appropriate medical care for the circumstances and be given a chance at life," she said. 

SB 9 passed the Senate 32-4 on Jan. 7 and the House 76-18 on Jan. 9. It also would become effective immediately upon becoming law.

Beshear has 10 days to sign the bills into law, allow them to become law without his signature, or veto them. The House and Senate can override a veto with a vote of the majority of members in each chamber. The House has 75 Republicans and 25 Democrats, and the Senate is 30-8 Republican.