Attorney General Andy Beshear said Tuesday he will defend only one of two new laws that limit abortion in Kentucky.
In a statement, Beshear said his office would defend House Bill 2, which requires doctors to perform an ultrasound and present the results to their patient before providing an abortion, but will not defend any legal challenge to Senate Bill 5, which bans abortion after 20 weeks of pregnancy.
“While these decisions may not please advocates on either side, my duty is to the law,” Beshear said.
The two measures were overwhelmingly approved by the Republican-controlled legislature last week and later signed into law by Republican Gov. Matt Bevin.
The American Civil Liberties Union filed a legal challenge Monday to HB 2 in federal court and said it is is considering a possible lawsuit against SB 5.
Beshear, a Democrat, said it is his duty as attorney general “to enforce the constitution and to defend laws where the constitutionality is questionable and finality is needed.”
“Adhering to these duties is why, after close review, my office will defend the agencies sued over House Bill 2 that seek our representation,” Beshear said.
Beshear said his office would not defend SB 5 because it “is clearly unconstitutional based on our review of numerous federal appellate rulings, which state that identical statutes in other jurisdictions are illegal under numerous Supreme Court decisions.”
Bevin accused Beshear of “refusing to do his job.”
“AG Beshear would rather pander to his liberal, pro-abortion base than defend the law of Kentucky,” Bevin said in a written statement. “I will, therefore, continue doing it for him by defending these pro-life bills. The citizens of Kentucky demand and deserve no less.”
Defendants named in the ACLU’s lawsuit challenging HB 2 were Beshear, Health and Family Services Secretary Vickie Yates Brown Glisson, and Michael Rodman, executive director of the Kentucky Board of Medical Licensure.
The question of whether it is constitutional to require a mandatory ultrasound that must be shown to women seeking an abortion has split the two federal appellate circuits that have directly addressed it, Beshear said. The Sixth Circuit federal appeals court that includes Kentucky has not considered the issue, he said.
Beshear noted that “this matter has risks and potential costs, which resulted in over $1 million in legal fees to North Carolina, which lost its defense.”
“Attorney General Andy Beshear is once again refusing to do his job,” Bevin said. “Even though he is obligated by law to do so, AG Beshear refuses to defend the 20-week abortion ban, a bill that won the support of nearly 80 percent of the General Assembly, including 21 Democrats.”
House Speaker Jeff Hoover, who sponsored HB 2, said Beshear should defend both bills.
“Andy Beshear’s job as attorney general is to defend laws enacted by the General Assembly,” said Hoover, R-Jamestown. “The law is very clear and he does not get to pick and choose. He needs to show up for work and do his job.”
Martin Cothran, spokesman for The Family Foundation, said Beshear has “the Jack Conway syndrome — when an official elected to defend our laws decides that they don’t want to.”
Cothran was referring to a 2014 decision by then-Attorney General Conway to not appeal a federal judge’s order requiring Kentucky to recognize same-sex marriages that were performed elsewhere. The appeal was taken up by then-Gov. Steve Beshear, the father of the current attorney general. The U.S. Supreme Court later ruled that same-sex marriages were constitutional.
Conway contended that Kentucky’s same-sex marriage ban discriminated against a minority and was doomed to fail, so the state should not squander its limited resources trying to save it.
The ACLU did not return phone calls Tuesday seeking comment about Beshear’s actions.