Ky. law to ban the most common method of second-trimester abortion struck down; Bevin administration will appeal decision

District Judge Joseph H. McKinley Jr.
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A federal judge has struck down a 2018 Kentucky law banning the most common method of second-trimester abortion.

The law would prohibit physicians from providing a procedure called dilation and evacuation, or D & E, which is the standard method for abortion care after 14 weeks of pregnancy. It would make it a felony for a physician to perform such a procedure and make the doctor subject to sanctions against his or her medical license. The law was passed to go into effect immediately, but was delayed by a court-order pending the trial.

U.S. District Judge Joseph McKinley, who heard the case without a jury, “ruled the law is unconstitutional because it restricts a woman’s constitutional right to an abortion before the fetus is considered viable, at around 24 weeks,” Deborah Yetter reports for the Louisville Courier Journal.

The American Civil Liberties Union, which filed the challenge to the law on behalf of EMW Women’s Surgical Center in Louisville, the state’s only abortion clinic, said the ruling was a victory for women’s health.

“Today’s ruling affirms that health, not politics, will guide important medical decisions about pregnancy,” Alexa Kolbi-Molinas, senior staff attorney with the ACLU Reproductive Freedom Project, said in a prepared statement. “Laws like this are part of an orchestrated national strategy by anti-abortion politicians to push abortion out of reach entirely. Today’s decision holds — in no uncertain terms — that Kentuckians and the care they need come first.”

The administration of Republican Gov. Matt Bevin, who has made fighting abortion a central issue, said it will appeal.

“We profoundly disagree with the court’s decision and will take this case all the way to the Supreme Court if necessary, to protect unborn children from being dismembered limb by limb while still alive,” Elizabeth Kuhn, Bevin’s communications director, said in a statement.

“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,” Yetter reports. “Supporters claim it is meant to end a brutal practice they liken to fetal dismemberment.”

Yetter reports that the procedure is used in about 500 of the approximately 3,200 abortions each year at the EMW Women’s Surgical Center.

Since Republicans took complete control of Kentucky lawmaking in 2016, the General Assembly has passed several bills to restrict or eliminate abortion in Kentucky. This year, they passed four such bills. Two have been temporarily blocked by a federal judge, one to ban abortion once a fetal heartbeat is detected, around six weeks of pregnancy; and the other to ban abortion for women seeking to terminate a pregnancy because of an unborn child’s sex, race, color, national origin or the diagnosis or potential diagnosis of Down syndrome or any other disability.

Meanwhile, a federal appeals-court recently upheld a 2017 Kentucky law that requires women to have an ultrasound before having an abortion while their doctor displays the image and offers a medical description of the fetus with the heartbeat played loud enough for the woman to hear. The law allows the woman to avert her eyes from the image and to ask for the heartbeat volume to be turned off, but not to refuse the procedure.