The Future of Roe v. Wade: 3 Scenarios, Explained
The Kentucky legislature’s pro-life caucus on Thursday announced a package of bills meant to further restrict access to abortion, even as the state’s last few abortion measures are being litigated in the federal courts.
The strongest of the new bills, Senate Bill 9, would ban abortion in Kentucky after “the presence of a fetal heartbeat,” which doctors say can be detected about six weeks into pregnancy.
“Senate Bill 9 is simply a bill that says if you have detection of a heartbeat, then that child is a living human being, and you can no longer murder that child in his mother’s womb,” Sen. Matt Castlen, R-Owensboro, said at a Capitol news conference.
But critics say many women don’t realize they are pregnant until the sixth week or later. Ultrasounds that might reveal problems with a pregnancy typically aren’t conducted until weeks 18 to 20, making it too late for a woman to end her pregnancy at that time.
“Essentially what you’re putting in place is a six-week ban, which from our doctors’ perspective is a complete ban on abortion,” said Kate Miller, advocacy director for the Kentucky ACLU, which has sued to block several past abortion laws. “With a six-week ban, we know nothing about the health of the pregnancy.”
Under the bill, doctors who perform an abortion without first checking for a fetal heartbeat could be convicted of a Class D felony and face one to five years in prison. Doctors who believed a “medical emergency” exists could be allowed to perform an abortion even with a fetal heartbeat, but they would need to document the medical emergency in their notes for future inspection.
States around the country have passed “fetal heartbeat” abortion bans since 2013, although they have been successfully challenged in the federal courts. In 1973, the U.S. Supreme Court ruled in Roe v. Wade that a woman’s right to privacy guarantees her control over her pregnancy during the first trimester, and it defined different levels of state interest during the second and third trimesters.
The other three abortion bills being readied for the 2019 legislative session would:
▪ Ban all abortions in Kentucky if the U.S. Supreme Court overturns Roe V. Wade.
Rep. Joseph Fischer said Thursday that he believes the federal courts could outlaw abortion now that President Donald Trump and Senate Majority Leader Mitch McConnell of Kentucky are putting more conservatives on the bench.
“We know that God will dispense his justice and secure this inalienable gift of life for all Kentucky children,” Fischer said. “We just don’t know the day or the hour. But we must be prepared for the time of deliverance.”
▪ Ban abortions that appear to be based on race, gender or “perceived disability, such as Down syndrome.” One of the sponsors, state Rep. Nancy Tate, R-Brandenburg, said she was inspired by her son, who has autism.
“For him, every day is filled with challenges that many of us can’t even imagine. But he is intelligent, bright and contributes to our lives in so many ways,” Tate said. “We talk a lot about choice when it comes to abortion. I can tell you that if I had to do it all over again, I would choose life.”
A similar bill was filed last year with 16 sponsors, but it drew vocal opposition from doctors and families with disabled members, and it did not leave the House Judiciary Committee.
▪ Require doctors to report all prescriptions for abortion drugs, such as RU-486, to to the state Vital Statistics Branch, which will publish an annual report online showing how many prescriptions were written. The data would not identify patients or doctors.
Medication abortion has become a more frequent choice for women in the United States since it was approved for use in 2000, even as surgical abortions have declined. Bill sponsors said they don’t believe anyone is collecting all of the data on these drugs.
“I believe in accurate reporting of all abortions that are occurring in Kentucky,” state Sen. Robby Mills, R-Henderson, told the Senate Committee on Veterans, Military Affairs and Public Protection on Thursday. The committee approved the bill.
While those bills are pending at the Capitol, several of Kentucky’s recent abortion restrictions already are tied up in federal courts.
Last November, a district judge in Louisville heard arguments in the ACLU’s challenge to the state’s ban on a common form of abortion in Kentucky for women who are 11 weeks or more pregnant, a procedure called “dilation and evacuation.”
In another case, Gov. Matt Bevin has appealed the ACLU’s successful challenge to his insistence that Kentucky’s sole remaining abortion clinic, in Louisville, have transfer agreements in place with a hospital and an ambulance service in case of emergencies.
Also on appeal is the ACLU’s successful challenge of a Kentucky law requiring doctors to show and describe an ultrasound to pregnant women before performing an abortion.
“Of course, this is very costly to the state,” said the ACLU’s Miller. “Our most recent legal case has fees reaching over $1.5 million at this point. Kentucky is in a fiscal crisis, but they still prioritize this type of legislation.”