Kentucky Attorney General Andy Beshear sent a letter to state legislative leaders on Thursday informing them that a proposed bill to ban abortions roughly six weeks after conception is unconstitutional.
Senate Bill 9, along with its companion House Bill 100, would make it a Class D felony for a doctor to perform an abortion after a fetal heartbeat can be detected. The Senate bill is sponsored by 18 Republicans — a majority of the chamber — and the House bill is sponsored by Rep. Robert Goforth, R-East Bernstadt, who is running for governor this year.
In his letter, Beshear wrote that SB 9 is unconstitutional, as “the Supreme Court of the United States has uniformly held — in no fewer than eight separate decisions — that neither Congress nor a State legislature can ban abortions before viability.”
“Courts have held that viability generally occurs around 24 weeks, although the Supreme Court has explained that viability must be a medical — and not a legislative — decision, which must be made on a case-by-case basis,” wrote Beshear. “Because a doctor can usually detect a heartbeat at around six weeks, the bill’s blanket prohibition violates every applicable United States Supreme Court and Federal Circuit Court case on the topic.”
Beshear added that the Tenth Circuit Court of Appeals has held that legislatures passing bans like SB 9 that are so clearly unconstitutional “make a deliberate decision to disregard controlling Supreme Court precedent,” and the Supreme Court as recently as 2007 ruled that women have a constitutional right under the Fourteenth Amendment to obtain an abortion before viability without undue interference from the state.
In a footnote to the letter, Beshear wrote that the text of SB 9 “seems to assume that Roe will soon be overturned,” but that assumption “has no basis in law” and ignored that the two most recent justices on the Supreme Court “have stated under oath that they believe Roe is the settled law of the land.”
Reproductive rights advocates are fearful that despite such testimony, the most recent shift to the makeup of the Supreme Court could create a challenge to Roe v. Wade coming before the court in the near future, as states continue to pass laws restricting abortion that are struck down in state and federal courts.
At a news conference to announce these anti-abortion bills three weeks ago, members of the Kentucky General Assembly’s Pro-life Caucus explicitly mentioned this chance and the hope that such legislation would find its way to the Supreme Court and lead to the dismantling of Roe v. Wade.
Beshear’s letter went on to state that federal and state courts have declared legislation even less restrictive than the heartbeat bill to be unconstitutional, and that other states have “recognized the futility” of passing bills like SB 9, referencing Ohio Gov. John Kasich’s veto of a similar heartbeat bill last year.
The attorney general concluded that the Supreme Court has spoken on this issue, which “means that when the state is sued over this law, the Commonwealth will lose, and will owe hundreds of thousands of dollars in fees.”
Sen. Matt Castlen, R-Owensboro, the main sponsor of SB 9, responded by stating “while this may be news to the Attorney General, Kentucky is a pro-life state.”
“Andy Beshear has made it abundantly clear that his personal ideology aligns with abortion advocates who believe in extreme legislative measures like those proposed in New York and Virginia,” added Castlen. “Every piece of legislation is subject to legal challenge, but I will continue to fight for the rights of the unborn here in the Commonwealth.”
Asked three weeks ago if he supported the heartbeat bill, Beshear, who is running for governor, stated that “we’re still analyzing that final version,” and that he would not support legislation “if it violated the Constitution, as our Supreme Court has set out what it meant.”
This story has been updated with comments from Castlen.