by Deborah Yetter, Louisville Courier Journal –
A federal judge on Tuesday will hear arguments over whether a state law that bans an abortion procedure is constitutional. About 500 patients a year at Kentucky’s only abortion clinic undergo the procedure.
Supporters of the law say it ends a procedure they see as “brutal and violent.”
Opponents say it will severely restrict abortions for women who are not able to obtain one through other methods because of medical reasons.
U.S. District Court Judge Joseph H. McKinley will preside over the trial without a jury and likely will issue a decision at a later date. Enforcement of the law has been suspended while the case is pending.
The case represents the third challenge to Kentucky abortion laws in two years.
In those cases, two other federal judges struck down the laws as unconstitutional. One required abortion clinics to have signed agreements with a hospital and ambulance service; the other required physicians to perform an ultrasound and attempt to describe it and show it to the patient prior to an abortion.
The current challenge is to a law adopted by the General Assembly this year to ban a procedure known as “dilation and evacuation.” It would make it a felony for a physician to perform such a procedure and be subject to sanctions against his or her medical license.
Opponents of the law say it is part of a broader national ploy by the anti-abortion movement to chip away at access to abortions.
“Anti-abortion organizations created these bills not just to ban a method but to ban abortion overall,” said Andrew Beck, senior staff attorney with the American Civil Liberties Union Reproductive Freedom Project.
He’s among lawyers challenging the law on behalf of EMW Women’s Surgical Center in Louisville. It’s the only abortion clinic left in Kentucky after enforcement actions by Gov. Matt Bevin’s administration stopped it at two other sites.
Bevin’s lawyers, led by General Counsel M. Stephen Pitt, are defending the law and have forcefully attacked the procedure as “truly a brutal practice” that involves dismemberment of “helpless unborn children.”
State Rep. Addia Wuchner, sponsor of House Bill 454, which effectively bans dilation and evacuation, said her concern is for the “human child within the womb.”
“We sort of sterilize abortion when we think about it as a medical procedure, which it is,” said Wuchner, a Burlington Republican and chairwoman of the House Health and Family Services Committee.
But this particular procedure, performed after the 14th week of pregnancy, involves “dismemberment” of a live fetus to remove it with instruments, Wuchner said.
“It’s a deliberately violent and brutal procedure,” she said.
Lawyers for the clinic say opponents of the procedure use “purposefully inflammatory” and “non-medical” terms to describe a method that is safe and medically proven.
“Much of the language you will hear from our opponents is part of an intentional shock campaign of inflammatory rhetoric, provocative images and made-up terms,” said Beck, the ACLU lawyer.
Further, they said it would disproportionately affect low-income women who account for about 75 percent of those who seek abortions each year, and for various reasons, have been unable to obtain one earlier in their pregnancies.
Supporters of Kentucky’s law are urging McKinley to uphold it, while opponents are asking the judge to strike it down as an unconstitutional barrier to a woman’s right to abortion.
But Beck said federal judges in three other states – Alabama, Arkansas and Texas – have rejected similar laws passed in recent years.
“Every other court to have looked at a ban like this one has blocked it,” he said.
Abortion in Kentucky
About 3,200 abortions are performed each year at the EMW clinic in Louisville, according to statistics collected by the Cabinet for Health and Family Services.
Most occur early in pregnancy, prior to 14 weeks, and involve a non-surgical method in which a patient terminates a pregnancy by taking pills or undergoes a procedure in which suction is used to remove contents of the uterus.
Last year, 526 women underwent abortions through dilation and evacuation, which involves removing the fetus through instruments.
Opponents of the law describe the procedure as “the safest and most common method” available after 14 weeks of pregnancy.
Bevin’s lawyers argue that there are alternatives that would induce “fetal demise” prior to the procedure to avoid aborting a live infant through dilation and evacuation. Such measures include injecting a solution to kill the fetus prior to the procedure.
EMW’s lawyer reject such procedures as risky, unproven and unnecessary – and potentially dangerous to the patient.
In supporting the law, Bevin’s lawyers argue that women seeking an abortion after 14 weeks could go out of state to one of many clinics in surrounding states.
EMW’s lawyers argue that a state can’t defend an unconstitutional law by claiming patients can go to other states for care.
Both sides have scheduled a lineup of expert witnesses, including physicians, ethicists and others to support their claims at a trial that is expected to last several days.
Wuchner said she plans to attend the trial, which is likely to draw many others from both sides of the debate.
Whatever the outcome, she expects the case to be appealed, as have the two previous decisions by federal judges in Louisville striking down Kentucky abortion laws. Those appeals are pending before the 6th U.S. Circuit Court of Appeals.
“I think our legal team has done a magnificent job,” Wuchner said. “The judge will have all the information to make his decision and we’ll go from there.”