Kentucky abortion battle shifts to second-trimester ban

Kentucky’s protracted legal fight over abortion is entering a new round involving the same combatants, but this time they’ll be arguing over a second-trimester procedure to end pregnancies.

Lawyers for Kentucky’s only abortion clinic will argue in federal court next week that a new state law amounts to an unconstitutional ban on a procedure they term the “safest and most common method” of second-trimester abortions. Critics called the procedure a form of dismemberment of a live fetus.

Since assuming complete control of Kentucky’s legislature in 2017, Republicans have pushed through measures putting limits and conditions on abortion. Two abortion-related laws, including one on the books for two decades, have been struck down in court since, but Republican Gov. Matt Bevin’s administration has appealed both cases.

Bevin’s administration sees the second-trimester procedure as a “particularly gruesome form of abortion,” and the governor signed a restriction on that in April after the measure passed the state’s GOP-dominated legislature. Though it took effect immediately, the measure spurred a quick legal challenge from the state’s only remaining legal abortion clinic, EMW Women’s Surgical Center in Louisville.

Within days, a federal judge suspended enforcement of the law pending the outcome of a trial that opens Tuesday in U.S. District Court in Louisville.

It’s the latest in a series of abortion-related fights pitting Bevin’s legal team against lawyers from the American Civil Liberties Union.

Previewing the upcoming trial, an attorney for the clinic said Thursday that the Kentucky law is an example of politicians inserting themselves into decisions that should be left to doctors and patients. The goal was to chip away at access to abortion, the attorney said.

“In Kentucky, the impact of this law is that abortion would not be available after about 15 weeks in pregnancy if it were allowed to take effect,” said Andrew Beck, senior staff attorney for the ACLU’s Reproductive Freedom Project.

Beck told reporters some women can’t obtain abortions soon after making up their minds because of cost or difficulties of traveling to see a doctor.

The two sides are fighting over an abortion procedure known as “dilation and evacuation.” The procedure was used in 537 of 3,312 abortions done in Kentucky in 2016, according to state statistics.

In defending the new law, the state’s legal team has focused in part on the nature of the procedure. In pre-trial briefs, they described it as the dismemberment of a fetus removed from the womb “piece by piece.”

“It should go without saying that the brutality of a D&E abortion performed on a still-living unborn human being runs contrary to the values of modern civilized society, where the strong are supposed to protect the weak,” the state’s lawyers said in a pre-trial brief.

Steve Pitt, who leads the state’s legal team, said in an interview Thursday that the state has a “legitimate interest in protecting the rights and the dignity of unborn children. That’s what this case is about.”

Beck predicted the state’s lawyers will present a case built on “an intentional shock campaign of inflammatory rhetoric, provocative images and made-up terms.” Without elaborating on the procedure, Beck said bans on D&E procedures are opposed by national medical groups and that the abortion method is considered safe.

He also noted that similar laws in a handful of other states were struck down by federal judges, though some cases are being appealed.

Asked about those decisions, Pitt said: “We’ll present a very strong case.”

The state’s lawyers say the law would allow use of the D&E procedure, but only after doctors employ a “more humane way” to induce fetal death through another procedure. The clinic’s lawyers question the safety and reliability of such pre-D&E methods.

“Even were there techniques that guaranteed demise, forcing plaintiffs to perform unnecessary … procedures that their patients do not want and that carry increased risks while providing no medical benefits would violate their ethical duties as physicians,” the clinic’s lawyers said in a brief.

Of two abortion-related laws struck down by the courts in the Bevin era, one would require doctors to perform ultrasounds and show fetal images to patients prior to abortions. The other, passed two decades ago, required a Kentucky abortion clinic to have written agreements with a hospital and ambulance service in case of medical emergencies. Bevin’s administration cited that law in a fight that threatened the state’s last abortion clinic.