CINCINNATI (CN) – Kentucky urged a Sixth Circuit panel Wednesday to reinstate a law that would require abortion providers to perform a so-called fetal demise procedure before a standard dilation and evacuation abortion for women who are more than 15 weeks pregnant.
A federal judge struck down the law as unconstitutional in May 2019, ruling it placed an undue burden on a woman seeking an abortion.
EMW Women’s Surgical Center, Kentucky’s last operating abortion clinic, filed suit against then-Kentucky Health Secretary Adam Meier on the day House Bill 454 was signed into law by former Governor Matt Bevin, a Republican.
A bench trial was held in November 2018 and U.S. District Judge Joseph McKinley Jr. ultimately ruled in favor of EMW.
McKinley, a Bill Clinton appointee, cited similar laws in Arkansas and Kansas that had been temporarily suspended because of constitutional concerns. He ruled that even though the state has an interest in upholding the “integrity of the medical profession,” the burden imposed on women by the requirement outweighs that interest.
Digoxin or potassium chloride injections are two of the methods that could be used to comply with HB 454 by first terminating the fetus before an abortion, but McKinley reasoned that the difficulty of the procedures, potential risks to the women and the injections’ unreliability made them a substantial burden to women seeking abortions.
“The commonwealth’s legitimate interests,” McKinley wrote, “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. Here, Kentucky’s legitimate interests must give way to the woman’s right.”
Kentucky Deputy Solicitor General Matthew Kuhn argued on behalf of the state Wednesday and told the Sixth Circuit panel “all [HB 454] does is change how the abortion must be performed.”
Kuhn cited the 2007 U.S. Supreme Court case Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003, and said the ruling gave deference to state legislatures.
“Gonzales put a thumb on the scale in favor of what Kentucky has done here,” he said.
U.S. Circuit Judge Eric Clay, a Clinton appointee, asked about the addition of procedures that may not be medically necessary, and what kind of a burden they impose on a woman seeking an abortion.
Kuhn told Clay that the fetal-demise procedures necessitate additional doctor visits only for women who are 15 to 16 weeks pregnant, and then expounded on the safety of the procedures.
“The risks for a D&E,” he told the panel, “are astronomically higher than the [fetal-demise] injections.”
Kuhn said the district court erred when it ruled the law unconstitutional because EMW failed to prove the procedures were a “significant medical risk.”
Attorney Andrew Beck argued on behalf of EMW, disputing his counterpart’s assessment of the risks associated with fetal-demise procedures.
Beck said the consensus among the medical community is that “the harms don’t justify the benefits,” and that his client does not perform them because of their risks.
The attorney accused Kuhn of “picking and choosing lines from testimony” to support the state’s position regarding the safety of D&E abortions.
“Kentucky is really swimming upstream here,” Beck told the panel. “Abortion access would dry up entirely” if the law went into effect, he added.
In an interview after the hearing, Beck said he felt the judges asked good questions and “the arguments show that the law stands in the way of ethical medical practices.”
Kentucky Attorney General Daniel Cameron, a Republican, attended Wednesday’s arguments and made a statement to anti-abortion advocates outside the courthouse.
He called D&E abortions “a gruesome practice … of dismembering a child limb from limb while they are still alive,” and said HB 454 seeks only to ensure the fetus is dead before the abortion is performed.
Senior U.S. Circuit Judge Gilbert Merritt, a Gerald Ford appointee, and U.S. Circuit Judge John Bush, appointed by President Donald Trump, also sat on the panel.
No timetable has been set for the court’s opinion.
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