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Appeals Court Refuses To Reinstate Ky. Ban On Common Abortion Procedure

The Sixth Circuit Court of Appeals in Cincinnati.
U.S. Courts
The Sixth Circuit Court of Appeals in Cincinnati.

A federal appeals court has upheld a ruling that overturned Kentucky’s ban on a common abortion procedure called dilation and evacuation, saying it would impose a burden on women seeking abortions.

Kentucky’s Republican-led state legislature passed the ban in 2018, which was signed into law by then-Gov. Matt Bevin.

EMW Women’s Surgical Center in Louisville, at the time the state’s only abortion provider, sued over the law, saying it would all but eliminate abortions after the 13th week of pregnancy — the time frame when dilation and evacuation procedure is most commonly used.

Kentucky already bans abortions during or after the 20th week in pregnancy.

The Bevin administration argued that patients had the option to go out of state to seek the procedure or undergo a “fetal demise” process that involves injecting a solution to kill the fetus before conducting a dilation and injection procedure.

In a 2-1 ruling, the Sixth Circuit Court of Appeals upheld a lower court ruling that blocked the law, saying that it imposes an undue burden on people seeking abortions.

“Altogether, H.B. 454 imposes substantial burdens on the right to choose. Because none of the fetal-demise procedures proposed by the Secretary provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E,” U.S. Circuit Judge Eric Clay, an appointee of President Bill Clinton, wrote in the opinion.

Republican Attorney General Daniel Cameron took over defending the law after Bevin left office in late 2019.

Elizabeth Kuhn, Cameron's communications director, wrote in a statement that they were 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 could appeal the ruling to the U.S. Supreme Court or seek an "en banc" hearing, in which the case is heard before all of the judges on the appeals court.

The ACLU, which brought the case on behalf of EMW, issued a statement saying that the ruling shows that the law would have harmed patients.

“Two courts have made it resoundingly clear that D&E abortion care is safe, and Kentuckians have a right to access this care,” wrote ACLU of Kentucky staff attorney Heather Gatnarek.

“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.”

U.S. Circuit Judge John Bush, who was appointed by President Donald Trump in 2017, dissented from the majority opinion, arguing that patients seeking an abortion would prefer to seek “fetal demise” procedures before undergoing dilation and evacuation.

“All of the evidence presented at trial about patient preference circumstantially supports a finding that at least some – and potentially, most – of patients seen by plaintiffs would favor the effect of H.B. 454 because those patients would want fetal demise before a D&E,” Bush wrote.

Kentucky has passed several abortion restrictions since Republicans won control of the legislature in 2016. Some of the bills have been blocked — like a ban on abortions once a fetal “heartbeat” can be detected — others have been upheld, like a requirement that doctors describe and play audio of a fetus’ heartbeat before a patient can have an abortion.

This story has been updated.


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