Kentucky abortion-bill backers hope their measures might lead the U.S. Supreme Court to end legalized abortion

State Sen. Damon Thayer (Northern Kentucky Tribune photo)

Kentucky legislators’ recent filing of anti-abortion bills isn’t just about the state; they hope the bills could make national impact.

“Emboldened by two conservative justices added to the U.S. Supreme Court in the past two years, a top Republican legislator believes Kentucky could be at the forefront of an effort to end legalized abortion nationwide,”Deborah Yetter reports for the Louisville Courier Journal. 

“I would be proud if it’s Kentucky that takes it up to the Supreme Court and we change Roe v. Wade,” the 1973 decision that created a right to abortion, said Sen. Damon Thayer, the majority floor leader in the Kentucky Senate. Such a feat would be “the pinnacle of my career.”

Yetter notes that Kentucky lawmakers have said they aren’t worried about the costs of litigation that would likely result if a bill to ban abortion once a fetal heartbeat is detected, around six weeks of pregnancy, is passed into law.

“I don’t think you can put a price on the life of the unborn,” Thayer told Yetter.

Such legislation, Senate Bill 9, sponsored by Sen. Matt Castlen, R-Owensboro, has already passed out of the Senate and now resides in the Republican led House. Yetter reports that supporters anticipate a quick final passage of the bill, which has an emergency clause that would allow it to take effect immediately.

Opponents of the “fetal heartbeat bill” say it amounts to an unconstitutional ban on abortion, since most women don’t know they are pregnant until after six weeks of pregnancy and ultrasounds to determine the health of the fetus aren’t typically done until the 14th week of pregnancy.

Brigitte Amiri, deputy director of the American Civil Liberties Union Reproductive Freedom Project, told Yetter that such efforts are deliberate: “This is to take a direct challenge of Roe v. Wade to the Supreme Court in light of changes to the Supreme Court.”

President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh have led many to believe that the court has a solid 5-4 conservative majority, that is primed to overturn the 1973 decision and others stemming from it.

But James Bopp Jr., a prominent conservative lawyer based in Terre Haute, Ind., who regularly tries cases before the Supreme Court and who served as general counsel to National Right to Life, a leading opponent of abortion, disagrees.

Bopp and associate Corrine Youngs wrote in an Oct. 19 memo to Indiana Right to Life‘s legislative committee that the recent appointment of Kavanaugh “is not a guarantee” that Roe will be overturned and that “of the nine Supreme Court justices, only Clarence Thomas has stated in a judicial opinion that Roe v. Wadeshould be overturned and that a “major obstacle” is the general reluctance of the high court to overturn cases it already has decided,” Yetter reports.

Bopp, in the memo, urges abortion opponents to set “realistic goals” for legislation and to avoid “problematic” legislation like the fetal heartbeat bills, which under current law is unconstitutional and if struck down comes at a high costs to states that challenge them.

That said, passing bills like those pending in Kentucky seems to be a national trend. Yetter reports that similar measures are under consideration in about half a dozen other states, even though “the Supreme Court has consistently ruled that states may not ban abortion before fetal viability, the point at which a fetus could survive outside the womb, considered to be about 24 weeks.”

Yetter notes that two abortion laws in Kentucky have recently been struck down by federal judges: one that required abortion clinics to have signed agreements with a hospital and ambulance service, and another to require providers to perform an ultrasound, describe it and show it to the patient prior to an abortion. The state has appealed both of these cases.

A third case involves a 2018 law that would ban the most common type of abortion, known as “dilation and evacuation” at roughly 11 weeks of pregnancy or after. This case was heard in the U.S. District Court in Louisville last year and awaits a decision from the judge.

The fetal heartbeat bill is just one bill in a package of anti-abortion bills that the state’s pro-life caucus introduced last week at a news conference.

Senate Bill 50, sponsored by Sen. Robby Mills, R-Henderson, which would require doctors to report all prescription drugs written for the purpose of abortions, passed the Senate 30-6 on Jan. 11. House Bill 5, sponsored by Rep. Melinda Prunty, R-Greenville, would ban abortion in Kentucky for women seeking to terminate a pregnancy “because of an unborn child’s sex, race, color, national origin or disability.” House Bill 148, sponsored by Rep. Joseph Fischer, R-Fort Thomas, would ban all abortions in Kentucky if the high court overturns Roe v. Wade.

Fischer said, “As we continue with this great battle, let us pray for Senator [Mitch] McConnell and President Trump to bolster our federal judiciary with men and women who will reverse the ruling in Roe v. Wade and restore the commonwealth’s ability to end abortion in our lifetime.”

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