A federal judge has struck down a one-year-old Kentucky law banning a type of abortion generally performed after the 14th week of pregnancy, a victory for abortion rights activists and a setback for the administration of Gov. Matt Bevin, which defended it.
In a ruling Friday, U.S. District Judge Joseph McKinley ruled the law is unconstitutional because it restricts a woman’s constitutional right to an abortion before the fetus is considered viable, at around 24 weeks.
Lawyers for the American Civil Liberties Union, which had challenged the law, said they were pleased with the ruling.
“Today’s ruling affirms that health, not politics, will guide important medical decisions about pregnancy,” said Alexa Kolbi-Molinas, senior staff attorney with the ACLU Reproductive Freedom Project. “Laws like this are part of an orchestrated national strategy by anti-abortion politicians to push abortion out of reach entirely. Today’s decision holds — in no uncertain terms — that Kentuckians and the care they need come first.”
Elizabeth Kuhn, Bevin’s communications director, said in a statement Friday evening that the administration intends to appeal. “We profoundly disagree with the court’s decision and will take this case all the way to the Supreme Court if necessary, to protect unborn children from being dismembered limb by limb while still alive,” she said.
The law would make it a felony for a physician to perform such a procedure and make the doctor subject to sanctions against his or her medical license.
The law, signed by Bevin, was immediately challenged by the ACLU on behalf of the state’s only abortion clinic, EMW Women’s Surgical Center. It had not been enforced while the challenge was pending.
Opponents of the law say it is part of a broader national ploy by the anti-abortion movement to chip away at access to abortions. Supporters claim it is meant to end a brutal practice they liken to fetal dismemberment.
It is among a wave of abortion bills enacted in recent years by the Republican-controlled General Assembly aimed at restricting or eliminating abortion in Kentucky.
This year, lawmakers passed four more such abortion bills.
Two already have been temporarily barred by a federal judge because of pending constitutional challenges. One bans abortion once a fetal heartbeat is detected, at about six weeks into a pregnancy; the other bans abortion for reasons of the gender, race of disability of the fetus.
Meanwhile, a federal appeals court recently upheld a 2017 state abortion law that had been struck by the trial judge as unconstitutional. The law requires a physician to perform an ultrasound of the fetus and display and describe it to the patient, as well as playing an audible heartbeat, before performing the abortion.
The patient may refuse to listen to the audio or look at the image but the physician must provide it.
An issue in the case before McKinley was the 2018 law banning abortions through a method known as dilation and evacuation, known as D & E, generally used 14 weeks into a pregnancy, where the fetus is removed with instruments.
Earlier in a pregnancy, a woman can induce an abortion by taking medication or undergoing a procedure in which suction is used to remove the contents of the uterus.
Opponents argued the D & E procedure involves dismemberment of the fetus.
Stephen Pitt, general counsel for Bevin, led a team of administration lawyers defending the law. He called the procedure “gruesome and brutal.”
But lawyers challenging the law described it as an effective, medically accepted means of terminating a pregnancy.
ACLU lawyer Kolbi-Molinas said it “is the safest method that can be used” after a certain point in a pregnancy.
About 3,200 abortions are performed each year at the EMW clinic in Louisville, according to statistics collected by the Cabinet for Health and Family Services. Of those, around 500 involve dilation and evacuation.
In supporting the law, Bevin’s lawyers argued that women seeking an abortion after 14 weeks could go out of state to one of many clinics in surrounding states.
EMW’s lawyers argued that a state can’t defend an unconstitutional law by claiming patients can go to other states for care.
McKinley heard the case in November without a jury, saying he would issue a ruling at a later date.