According to Wikipedia, Kentucky is known for horse racing, bourbon distilleries, moonshine, college basketball and KFC. To the list should be added laws that limit access to abortion.
The state tried to force doctors to conduct an ultrasound before an abortion and show the images to the patient. It imposed medically unnecessary restrictions on the operation of the sole abortion clinic in the state. A court blocked the enforcement of the ultrasound law and the validity of the restrictions is the subject of a second case.
Undaunted, last month the Kentucky legislature enacted HB 454. It effectively bans the abortion procedure known as dilation and evacuation, or “D&E,” after 10 weeks of pregnancy, except in cases of a medical emergency.
A D&E is the standard method for an abortion in the second trimester of pregnancy, used 95% of the time. A 2018 review of the evidence on all abortion methods, prepared by the National Academies of Science, Engineering, and Medicine, called D&E a “superior method” of abortion after 16 weeks of pregnancy, safe with minimal complications.
The evidence notwithstanding, the legislature made the performance of the procedure a felony. In the words of one legislator, the procedure was “barbaric.” “(D)efenseless unborn babies are torn limb from limb.”
HB 454 does not mention D&Es by name. Instead, the law prohibits the performance of an abortion that will result in the bodily dismemberment of the fetus and the age of the fetus is 11 weeks or more. In a standard D&E, a doctor must dismember the fetus in utero to aid in the removal of the fetus.
Kentucky is not the first state to target the D&E procedure. Seven other states have legislated on the subject. When challenged in court, the laws have been struck down. The most recent was Texas. Whole Woman’s Health v. Paxton, No. 1:17-cv-00690 (W.D. Tex. Nov. 22, 2017).
Texas’s law on its face did not bar the D&E procedure, a fact pushed by the state to no avail. It prohibited “dismember(ing) the living unborn child and extract(ing) the unborn child one piece at a time from the uterus” (emphasis added). Thus, if the doctor causes the demise of the fetus by a separate, earlier procedure, the doctor can begin the evacuation phase of the abortion without violating the law
Texas argued that doing in two procedures what was routinely done in one procedure “advances respect for the dignity of the life of the unborn and protects the integrity of the medical profession.”
Before the district court addressed the state’s argument, it pointed out the Supreme Court measures bans on partial-birth abortions, or the D&X procedure, by their impact or “burden” on the “widely-accepted” D&E procedure. Where the ban was not narrowly tailored to include only the D&X procedure and could be used “to pursue physicians who use (the standard) D&E procedures,” the ban failed. Stenberg v. Carhart, 530 U.S. 914 (2000).
“(B)ased on existing precedent alone,” the Texas law “must fail.” It “has the undisputed effect of banning the standard D&E procedure when performed before fetal demise.”
Turning to the state’s argument, the court assumed its interests were legitimate. Nevertheless, after hearing five days of testimony, the court found that forcing separate procedures “provides no additional benefit to a woman undergoing a standard D&E abortion.”
Causing the death of a fetus would delay the abortion by 24 hours. The patient would experience extra costs in terms of travel, time away from work and child care. The methods for causing the death were experimental and risky. Many abortion providers lacked training in their use.
Comparing the benefits of an abortion regulation to its burdens is important. Where the burdens exceed the benefits, then by definition the “obstacle in the path of a woman seeking an abortion of a nonviable fetus” is substantial and the regulation is unconstitutional. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. (2016).
The district court rephrased the inquiry, “does the benefit bring with it an obstacle of substance,” the benefit being the state’s interest? In this case the answer was yes. The law denied a woman access to “a safe alternative abortion procedure to the banned D&X or partial-birth abortion procedure.”
The court agreed that dismemberment is “graphic and distasteful.” But this evidence only “weighed on the State’s side of the scale. It does not remove weight from the woman’s side. And it does not add weight to tip the burden in the State’s favor.”
The governor of Kentucky signed HB 454 into law on April 11. The next day, the abortion clinic and two of its doctors—with the assistance of the ACLU—filed suit. EMW Women’s Surgical Center v. Beshear, No. 3:18-cv-00224 (W.D. Ky. April 12, 2018).
One day later the state agreed not to enforce the law pending a hearing in June on the plaintiff’s motion for a preliminary injunction. If the decisions on the laws of the other states are a guide, expect the court to grant the motion.
Attacking abortion makes for good politics. Overlooked in the noise is the right of the woman to make decisions about her pregnancy before the viability of the fetus. These decisions should focus on the woman’s health and well-being, not the graphics of a particular procedure.
Scott Forsyth is a partner at Forsyth & Forsyth and serves as legal counsel to the local chapter of the NYCLU but the views expressed herein are his own. He may be contacted at (585) 262-3400 or [email protected].