The attorneys general of 20 states have filed an amicus brief asking the Supreme Court to rule in favor of a 2018 Kentucky law that banned physicians from using a common but brutal abortion procedure known as dilation and evacuation (D&E).
Earlier this year, a three-judge panel struck down a Kentucky law banning dismemberment abortion. Gov. Andy Beshear’s administration refused to challenge the ruling, leaving Attorney General Daniel Cameron alone to appeal the ruling and defend the state law. Now, 20 states have joined together to file an amicus brief in defense of the Kentucky law. The bill has been signed into law by Kentucky’s previous Gov. Matt Bevin after being passed on a bipartisan vote in the General Assembly, but current pro-choice Gov. Andy Beshear is supported by abortion advocates and his administration refused to challenge the panel’s ruling.
In 2018, the Kentucky legislature overwhelmingly passed a bill that banned dismemberment abortions. During the gruesome procedure, forceps are used to grasp, crush, and literally pull the child apart before removing all of those parts from the mother’s womb. In 2016, the procedure was used in more than 16 percent of all Kentucky abortions.
The American Civil Liberties Union (ACLU) sued Kentucky over the law. Talcott Camp, a deputy director of the ACLU Reproductive Freedom Project, said, “We’re suing Kentucky yet again — this time to stop state politicians from banning a safe abortion method. This law disregards a woman’s health and decisions in favor of a narrow ideological agenda.”
U.S. District Judge Joseph McKinley ruled in favor of the ACLU in May of 2019. In June 2020, a three-judge panel of the United States Court of Appeals for the Sixth Circuit also ruled in favor of the ACLU. Judges Gilbert S. Merritt, Jr., a Carter appointee, and Eric L. Clay, a Clinton appointee, formed the majority opinion, while John K. Bush, a Trump appointee, dissented. The panel ruled that the law “imposes an undue burden on not just a large fraction, but all of the individuals it restricts.”
Kentucky Attorney General Daniel Cameron said, “We’re 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.”
The ACLU of Kentucky said,
“As the court recognized today, Kentucky’s law had no medical basis, and would have harmed patients seeking safe, constitutionally protected medical care. The state has no business dictating what care physicians can give their patients or banning certain procedures just to advance an anti-abortion agenda.”
Secretary of the Cabinet for Health and Family Services (CHFS) Eric Friedlander refused to appeal the ruling, so this past October, Cameron intervened and asked the Supreme Court to take up the case.
“The passage of House Bill 454 by the General Assembly represents Kentucky’s profound respect for the dignity of human life, and I will pursue every means available to make sure this important law is upheld,” Cameron explained after filing his case. “We’ve fought to defend this law since our first day in office, and now, I’m asking our nation’s highest court to consider it.”
The amicus brief filed by the 20 states argues,
“The threats to these sovereign interests are particularly acute in this case. The Sixth Circuit panel majority deprived the Commonwealth of Kentucky from seeking complete appellate review of the District Court’s injunction invalidating one of its duly enacted laws. And it did so on purely procedural grounds, holding that the Kentucky Attorney General could not intervene to vindicate state law on appeal because a single state officer had decided to abandon defense of a law passed by both houses of its Legislature and signed into law by its Governor.”
The brief continues,
“Absent correction by this Court, the laws of all states are threatened by the possibility that their democratic processes will be circumvented by strategic surrenders. It is one thing to have state laws invalidated when they are found unconstitutional after full litigation of the constitutional merits … But it is quite another to permit federal courts to be used as the contrivance to circumvent state democratic processes and empower single officials to repeal disfavored laws through the simple expedient of capitulation in litigation.”
Beshear served as Kentucky’s attorney general prior to being elected governor, but in that role, he also refused to defend a state law banning late-term abortion, despite the law receiving bipartisan support in the legislature. During his candidacy for governor Beshear received an endorsement from pro-choice organizations such as National Abortion Rights Activist League (NARAL) and Planned Parenthood. As governor, Beshear has already vetoed a bill to protect infants who survive abortion attempts, saying that the bill was “divisive” and reduced unity.
Kentucky is a conservative state that overwhelmingly supports Republicans like President Trump and Sen. Mitch McConnell on the federal level. Republicans won every other state office in the 2019 elections, yet elected a pro-choice governor in Beshear. Beshear was buoyed by the support of teachers and the teachers’ union who had opposed Bevin’s attempts at pension reform and balancing the budget. Beshear’s actions show that abortion is not just a federal issue and a governor does impact abortion. In addition to his aforementioned veto of a bill that would have required care for infants born alive after an abortion attempt, Beshear’s administration is promoting its own pro-choice agenda rather than defending a state law that protects children from being brutally killed. Supporting a pro-choice candidate will always translate to pro-choice policy.