By Dave Andrusko, National Right to Life
The state of Kentucky is engaged in an out-and-out battle with U.S. District Judge Joseph McKinley who on May 10 obliterated the state’s law forbidding the dismemberment of living unborn children as surely as the abortionist extinguishes the life of unborn children.
The state has appealed Judge McKinley’s decision to the U.S. Court of Appeals for the Sixth Circuit. On July 17, Gov. Matt Bevin’s legal team received a big boost when a coalition of 16 states, including Louisiana, filed an amicus (“friend of the court”) brief in the case of Kentucky’s House Bill 454.
“The attorneys general of Ohio, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and West Virginia argue that the Sixth Circuit should reverse the District Court’s erroneous opinion,” according to SurfKY News.
Before getting into the legal ins and outs, the brief begins with an important gut-level truth. Quoting from a prior decision, it states,
“Every State in the Union has animal-welfare laws. “Dogs may not be beaten for fun. Bullfights are forbidden. Horses may not be slaughtered.” … “Animal-welfare statutes are rational not simply because all mammals can feel pain and may well have emotions, but also because animal welfare affects human welfare.”
This question this case presents, the brief argues, is “whether States can extend the same benefit to unborn children.” That is, can States require “that doctors cause an unborn child’s death before dismembering him or her during a dilation-and-evacuation abortion?” All the Kentucky’s law does is “to bring a small dose of humanity to this procedure.”
The SurfKY News story nicely summarizes the three grounds on which the brief argues Judge McKinley went astray:
1) HB 454 does not place an undue burden on women seeking an abortion, 2) it does not place an undue burden on abortion providers, and 3) it should not have been struck down in its entirety by the lower court.
With respect to 1), the brief argues that McKinley “erred by applying the balancing test from Whole Woman’s Health v. Hellerstedt,” the 2016 Supreme Court decision which overturned large parts of a 2013 Texas law.
Regarding 2), the 16 AGs maintain that McKinley “erred in finding an undue burden based on the plaintiffs’ assertions that they would stop performing second-trimester abortions if the death-before-dismemberment law went into effect. Feasibility of a regulation turns on whether a procedure can be carried out safely and effectively, not whether one clinic is willing or able to perform that procedure.”
And as for 3), the brief noted, McKinley “erred by disregarding the rule that courts must ‘enjoin only the unconstitutional applications of a statute while leaving other applications in force.'” The brief explained that McKinley “enjoined Kentucky’s law in its entirety, without considering whether the law is unconstitutional in all of its applications. But the law is certainly not unconstitutional in all of its applications — a great deal of evidence establishes that doctors can and do cause fetal demise before performing D&E abortions.”
When Judge McKinley struck down H.B. 454, Elizabeth Kuhn, communications director for Gov. Matt Bevin, said, “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.”
The law had overwhelming legislative support. The vote in the Senate was 31-5. The tally in the House was an equally one-sided 71-11.
“Even before the first trimester ends, the unborn child has a beating heart, brain waves, and every organ system in place,” said Ingrid Duran, NRLC director of state legislation. “Dismemberment abortions occur after the baby has reached these milestones.”