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U.S. 6th Circuit Court of Appeals, in split decision, throws out law restricting common abortion method

By Tom Latek
Kentucky Today

A federal court of appeals panel in Cincinnati, on a split decision, has upheld a lower court ruling that threw out a Kentucky law restricting use of a common method of abortion.

Legislation known as House Bill 454 passed the Kentucky General Assembly in 2018 and was signed into law by then-Gov. Matt Bevin. The measure outlawed use of a procedure called dilation and evacuation, which is the most common method of abortion after the first trimester of pregnancy.

A federal court of appeals panel in Cincinnati rules against HB 454

Specifically, the bill stated, “No person shall intentionally perform or induce or attempt to perform or induce an abortion on a pregnant woman:

“(a) That will result in the bodily dismemberment, crushing, or human vivisection of the unborn child; and

“(b) When the probable post-fertilization age of the unborn child is eleven (11) weeks or greater; except in the case of a medical emergency.”

The ACLU of Kentucky, on behalf of EMW Women’s Surgical Center, filed a lawsuit at U. S. District Court in Louisville, to halt enforcement of the new law. They claimed it amounted to an unconstitutional ban on a procedure they term the “safest and most common method” of second-trimester abortions.

After a trial in November 2018, U.S. District Judge Joseph H. McKinley Jr. ruled in May 2019 that the law would create a “substantial obstacle” to a woman’s right to an abortion, violating constitutionally protected privacy rights.

The Bevin administration then appealed that ruling to the U. S. 6th Circuit Court of Appeals in Cincinnati, which heard arguments on the case this past January.

On a 2-1 vote, the majority judges, Eric Clay and Gilbert Merritt ruled, “HB 454 imposes an undue burden on not just a large fraction, but all of the individuals it restricts, and so facial relief is appropriate. We cannot rewrite HB 454 in order to limit that relief to certain especially unconstitutional applications of the law. Accordingly, we affirm the district court’s grant of facial relief in the form of a permanent injunction.”

In his dissent, Judge John K. Bush noted the 5th Circuit has not ruled on a similar case, pending the U. S. Supreme Court’s disposition of another case. “The majority’s decision to issue a decision just before the Supreme Court potentially decides an outcome-determinative issue in our case seems to me an unwise use of judicial resources.”

Attorney General Daniel Cameron, who argued the case before the three-judge panel, said, “We’re disappointed with the court’s ruling and will take any steps necessary to continue defending the law, which protects the unborn from a gruesome procedure.”

Cameron’s office says he is still considering his options, which include asking the entire 6th Circuit to review the matter, or appealing the ruling to the U.S. Supreme Court.

“Two courts have made it resoundingly clear that D&E abortion care is safe, and Kentuckians have a right to access this care,” said Heather Gatnarek, staff attorney with the ACLU of Kentucky. “The Court of Appeals confirms what we’ve been asserting for years: The Kentucky General Assembly’s attempt to ban D&E abortion care is unconstitutional because it imposes a substantial burden on the right to choose. Our clients are relieved they will be guided by medicine, not politicians when providing D&E care to their patients.”

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