(CN) – A federal judge in Kentucky struck down a state law Friday barring abortions after 15 weeks of pregnancy without first terminating the fetus, finding that the law is unconstitutional and essentially a de facto abortion ban.
The law, included in House Bill 454, regulates second-trimester abortion procedures by requiring Kentucky physicians to terminate the fetus prior to the evacuation phase of a standard dilation and evacuation abortion.
The EMW Women’s Surgical Center in Louisville and two of its obstetrician-gynecologists, Ashlee Bergin and Tanya Franklin, sued the state’s health secretary, arguing that the law impedes a women’s right to choose her abortion method.
Plaintiffs argued that if the law went into effect, physicians would face an ethical and legal obligation to comply, thereby cutting off access to abortions in the state for women at 15 weeks after their last period.
The clinic also argued that the law violated women’s Fourteenth Amendment rights to privacy and bodily integrity.
In court papers, attorneys for Kentucky Health Secretary Adam Meier, the named defendant, argued that the law was not an abortion ban because it gives women the option of accessing a separate procedure to terminate the fetus before second trimester abortion.
The proposed procedures for terminating the fetus include blocking the umbilical cord with a clamp or injecting the fetus with potassium chloride or digoxin.
The state also leaned on the Kentucky Supreme Court ruling in Gonzales v. Carhart which held that the state has an “interest in protecting the integrity and ethics of the medical profession” and protecting a fetus which may become a child.
But U.S District Judge Joseph McKinley disagreed, writing in a 27-page order Friday that state interests cannot restrict abortion access.
“The Commonwealth’s legitimate interests do not allow the imposition of an additional required medical procedure—an invasive and risky procedure without medical necessity or benefit to the woman—prior to the standard D&E abortion,” McKinley wrote in the order. “Here, Kentucky’s legitimate interests must give way to the woman’s right.”
McKinley added that he found the law “facially unconstitutional” after reviewing pleadings and evidence presented during a November 2018 bench trial.
Citing the Planned Parenthood v. Casey case, McKinley also wrote that the law “has the effect of placing a substantial obstacle in the path of a woman’s choice[, it] cannot be considered a permissible means of serving its legitimate ends.”
The plaintiffs’ attorney did not immediately respond to a request for comment Friday afternoon.
A spokesperson for the Kentucky Cabinet for Health and Family Services, a named defendant in the case, did not immediately respond to a request for comment on the ruling and on whether or not it would appeal. But Elizabeth Kuhn, spokesperson for Gov. Matt Bevin, said the state will take the case “all the way to the Supreme Court if necessary.”
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,” Kuhn said in a statement. “We intend to appeal today’s decision to the Sixth Circuit, and we are confident that this statute will ultimately be upheld.”
It’s not clear whether McKinley’s ruling will survive an appeal.
Earlier this month, a divided Sixth Circuit panel reversed a federal judge when it ruled that a Kentucky law requiring abortion providers to perform an ultrasound and make the fetal heartbeat audible to the patient is constitutional.
The EMW clinic in Louisville – Kentucky’s last remaining abortion clinic – also filed a federal lawsuit on March 15 challenging a new state bill expected to become law that bans abortions motivated by a fetus’ sex, race or disability.
The Kentucky Legislature also passed a law in 2017 that requires doctors to show patients seeking an abortion the ultrasound image and describe it in detail, even over a patient’s objection.