Photo via Kentucky.gov

The Republican-dominated Kentucky General Assembly soon will pass two fast-tracked restrictions on abortion that already have been struck down as unconstitutional in other states because they violate the rights of women and doctors alike.

The first bill, SB5, is a total ban on all abortions after 20 weeks of pregnancy. To proponents of abortion bans, 20 weeks is when a fetus becomes able to feel pain. To scientists, fetal pain only becomes possible during the third trimester, after 26 or 27 weeks.

To courts, the 20-week ban is significant because total bans on abortion are considered automatically unconstitutional prior to fetal “viability.” That’s the point when a fetus has a probable chance of surviving outside the womb, regardless of whether it can feel pain or not. In Roe v. Wade, the Supreme Court held that viability does not occur prior to 24 weeks of pregnancy, meaning the states have no interest in “potential life” sufficient to justify abortion restrictions before then.

In 1989, the Supreme Court ruled that tests for viability could be required for patients seeking abortions as early as 20 weeks. Nevertheless, there have been no documented cases of fetal survival prior to 21 weeks, and thus, under the Court’s current abortion precedent, there is no constitutional justification for full abortion bans prior to that point. That hasn’t dissuaded abortion opponents from passing bans in other states, and will not dissuade the Kentucky General Assembly.

Unfortunately for Kentucky taxpayers who will have to pay to defend it in court, the legal viability of such a ban is dubious. The Ninth Circuit Court of Appeals has struck down similar 20-week bans in Arizona (2013) and Idaho (2015). The Eighth Circuit struck down Arkansas’ strict 12-week ban in 2015 (though the state’s 20-week ban is still in effect for now).

The second Kentucky bill, HB2, claims that requiring a doctor to perform an ultrasound, present images of the baby to the patient, and “ascultate (sic) the fetal heartbeat” so that the patient can hear it, “serve an essential medical purpose in confirming the presence” of a pregnancy. Of course this is nonsense. Doctors were accurately confirming pregnancies long before ultrasound technology existed and long before they were able to electronically broadcast the sounds of heartbeats to pregnant mothers. The only purpose of the bill is to compel doctors to guilt their patients into changing their minds about abortion just before the procedure is performed.

Opponents of unnecessary theocratic meddling in doctor-patient relationships, though politically out-numbered at the moment, are not without reason to be hopeful that this bill will also lose in court. First, the bill compels doctors to provide a specific type of medical counsel, which violates the First Amendment. The government may compel us to follow certain rules, but it may not compel us to speak against our will. Second, the bill adds another medically irrelevant hurdle to the abortion procedure. If women want to see an ultrasound image of the fetus prior to an abortion, they need only ask their doctor for one. There is no reason for the state to compel them to receive one.

As the House Judiciary Committee voted to send HB2 to a floor vote on Jan. 4, proponent Rep. Stan Lee (R-Fayette), an attorney, said the bill was needed to “protect the constitutional rights of the unborn.” But the Constitution does not extend rights to the unborn, and courts do not recognize such rights. The only rights implicated by abortion restrictions are the rights of the women seeking the procedure.

A similar North Carolina law was struck down by a federal court in 2012. When the ruling finally reached the U.S. Supreme Court in 2015, they declined to hear the case, rendering the law dead for good. Also in 2015, another federal judge struck down a nearly identical law in Wisconsin, ruling that “the legislation was motivated by an improper purpose, namely to restrict the availability of abortion services,” not to ensure health or safety.

Should Kentucky’s ultrasound bill ultimately wind up in the nation’s highest court, it may not fare well: The Supreme Court struck down other medically unnecessary abortion restrictions in Texas just last term.

All this is occurring in a state with just one primary abortion provider: EMW Women’s Clinic in Louisville. A part-time EMW clinic in Lexington is currently closed as litigation related to its licensure continues in state court. Similarly, a Planned Parenthood-run facility in Louisville was briefly in operation awaiting final licensure, but that process was halted when the Cabinet for Health and Family Services sued Planned Parenthood immediately after Gov. Matt Bevin took office in 2016. The state’s complaint against Planned Parenthood was dismissed by state circuit Judge Mitch Perry, but the cabinet is appealing.*

In other words, it already is incredibly difficult for women to have abortions in Kentucky. Not that demand is particularly high, however. A recent study has shown that both unintended pregnancies and the number of abortions have declined nationwide. As pro-choice advocates have argued for years, abortions are best prevented not through bans and restrictions but through better social services and better economic conditions. Women with good health care have fewer unintended pregnancies, and women in better financial situations are more capable of raising children — especially unintended ones.

Abortion has existed as long as people have existed, and it can never be totally eliminated. That is reality. Bans and regulatory burdens simply endanger the freedom and health of women who are entitled to make their own medical decisions without interference by the state.

The way to decrease the number of abortions is to improve the negative economic, medical and familial conditions that tend to incentivize them. That way, everybody wins. The mother, the child, and the state.

*Disclosure: I represented Planned Parenthood in the circuit court case along with several other attorneys.

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Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.