Kentucky Attorney General Andy Beshear sent the legislature’s top two leaders a letter Thursday informing them that he thinks a bill in this year’s General Assembly that would ban abortions if a fetal heartbeat is detected is unconstitutional.
“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,” Beshear said in the letter.
Beshear, who is a Democratic candidate for governor, said he offered the legal opinion because it is his job.
“As attorney general, it is my duty to enforce the Constitution and advise lawmakers of any legislation that is clearly unconstitutional, as I have done many times over the last three years,” Beshear told the Herald-Leader. “My office reviewed Senate Bill 9 and today, as part of my duty as attorney general, communicated that this law is unconstitutional.”
He said 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.
“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 wrote.
He said in the four-page letter to Senate President Robert Stivers, R-Manchester, and House Speaker David Osborne, R-Prospect, that the constitutionality of Senate Bill 9 “is not a close call; federal courts have repeatedly struck down less restrictive measures.”
He added: “The Supreme Court has spoken on this issue. This means that when the state is sued over the law, the Commonwealth will lose, and will owe hundreds of thousands of dollars in fees.”
Beshear also sent copies of his letter to other House and Senate legislative leaders. His spokesman, Terry Sebastian, confirmed the letter was sent to lawmakers Thursday morning.
Stivers and Osborne could not be reached for comment.
SB 9 is sponsored by Sen. Matt Castlen, a Daviess County Republican. It already has had two of three required readings in the state Senate and has been assigned to the Senate Committee on Veterans, Military Affairs and Public Protection.
“While this may be news to the attorney general, Kentucky is a pro-life state,” Castlen said in a statement. “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.
“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.”
Senate Majority Floor Leader Damon Thayer, R-Georegetown, said he doesn’t “care what Attorney General Beshear has to say.”
“The attorney general must have polling to show that he needs to shore up the left flank of his campaign,” Thayer said.
Thayer and some other legislators have said they think SB 9 could become a test case before the U.S. Supreme Court to end legalized abortion nationwide. In 1973, the high court established in Roe v. Wade a woman’s legal right to an abortion.