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4D Ultrasound

yawning infant

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PHOTO CREDITS: 4D Ultrasound of fetal yawning at 30 weeks of pregnancy by Dr. Wolfgang Moroder. Baby yawning by Jeuwre. Human fetus at 10 weeks.

10 week old fetus

fetus at 10 weeks

Learn about Kentucky’s Dismemberment Law.

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Eighth in a Series: Pro-life Laws Under Attack

A New Year’s Prediction: Perhaps the legal case against Kentucky’s Heartbeat and Anti-Eugenics Law will not be decided before Spring 2020.

In a document filed on December 16, 2019 by the Plaintiffs, it is revealed that an ‘En Banc’ review of Ohio’s Preterm-Cleveland v. Himes case has been granted by the Sixth Circuit Appeals Court. The Preterm-Cleveland case was cited by our attorneys in document 47 as relevant to Kentucky’s when Ohio appealed for a ‘full-bench’ (en banc) hearing after the Appellate Court upheld the preliminary injunction against it.

Some background

In 2018, the ACLU and Planned Parenthood of America filed a suit on behalf of several abortion clinics and their patients to challenge HB214, the Ohio law that prohibits abortion if based on a fetal diagnosis of Down syndrome. They argued that the law imposes an unconstitutional burden on patients seeking abortions. ReWire News reported:

On March 14, 2018, U.S. District Court Judge Timothy Black issued a preliminary injunction blocking the law, ruling that Planned Parenthood v. Casey and Roe v. Wade bars states from prohibiting pregnant people “from making the ultimate decision to terminate [their] pregnancy before viability.”

On October 11, 2019, the Sixth Circuit Court of Appeals affirmed the district court order blocking the law, ruling that it “unconstitutionally inhibits pre-viability abortions based on a woman’s reason for seeking abortion.” Ohio has sought a rehearing en banc.

Ohio’s request was granted on December 13, and the oral argument is scheduled for March 11, 2020. It seems likely that Judge Hale may wait for that opinion before issuing a decision on the Heartbeat and Anti-eugenics laws.

We await new documents to be filed, and will add a post to this series when that occurs.


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Seventh in a Series: Pro-life Laws Under Attack

On December 9, due to the 2019 general election results, all but one of the wonderful attorneys who have defended the Heartbeat and Anti-eugenics laws ‘withdrew as counsel’ from the case. Some are now employed under new AG Daniel Cameron. Currently, only Attorney Catherine York is on the job, and we are not privy to how things may develop from here.

So far, the Commonwealth wants: (partial summary)

  • Discovery for HB5, to determine the practice and prevalence of race-, sex-, and disability-based abortions and the state’s interest in stopping these; and for SB9 to bring to light facts on viability that would show it is a moving marker and therefore unreliable
  • For the Court to deny EMW’s motion for Summary Judgment on HB5 since no previous case has determined whether a state can ban race-, sex-, and disability-selective abortions. “Roe and Casey focused on women who do not want a child at all, not on women who want a child as long as he or she has certain characteristics.” (This is changing; see previous post. -ed). Also, HB5 protects the medical profession so doctors will be viewed as healers not as facilitators of discrimination. HB5 combats eugenics which is an international trend at present.
  • For the Court to deny EMW’s motion for Summary Judgment on SB9 which is not a “6-week Ban” but rather shows compelling interest of Kentucky in the lives of its unborn children. The fetal heartbeat is the key medical marker that, unlike the old viability marker, does not move; it is a stable, universally recognized sign of life and important milestone in an unborn child’s growth. It is not detectable at 6 weeks but rather at 8 to 10 (from LMP) by transabdominal ultrasound. (emphasis added)

Numerous affidavits were attached to this Document in support of the Defendant’s arguments which were demanded to be struck by Plaintiffs who insisted they were Discovery.

Kentucky argued that Plaintiffs had also provided Discovery by their statement (Doc 4) from an EMW abortionist who claimed that she could not serve patients and had to turn away one with a fetal anomaly. Thus, their request for Summary Judgment was based on a “verified” complaint, which is the same as Discovery. Our attorneys were not ‘born yesterday’.

They noted that the EMW attorneys did not file for Summary Judgment based on the pleadings, in which case Secy. Meier could have been prevented from offering evidence, but rather cited its own verified complaint and a declaration, which allowed Secy. Meier to offer competing evidence.

Nevertheless, the affidavits in support of Kentucky’s arguments were ordered removed, and Plaintiffs continued to argue:

  • As the Supreme Court and every other court to consider a pre-viability abortion ban has held, there is no state interest strong enough to overcome a woman’s decision to obtain an abortion before viability. Defendant’s arguments to the contrary are nothing more than attempts to improperly re-litigate the well-settled constitutional right to abortion, and they should be rejected…
  • Both Bans Are Unconstitutional Under Supreme Court Precedent That Categorically Prohibits States From Banning Pre-Viability Abortions. …The Court is instructed to strike Defendant’s improper expert declarations from the record and deny his request for Discovery.

Many of the documents on PACER are lengthy. The reason for this blog series is to explain briefly (relatively) to Kentuckians what has become of our pro-life bills that our Legislature passed.


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Sixth in a Series: Pro-life Laws Under Attack

A strategy of pro-lifers in pursuing bills that address varying aspects of abortion is to roll back Roe v. Wade incrementally but surely.

The goal of reducing the number of abortions is perfectly met in HB5 and SB9.

The Plaintiffs state in documents 5 and 6 that SB9 would result in prohibiting 90% of the abortions in the Commonwealth by banning abortion after a fetal heartbeat is detected. This may be an exaggeration.

EMW admits the 6 week LMP fetal heartbeat can only be detected by transvaginal ultrasound; SB9 only requires a standard medical procedure to detect the heartbeat. Thus, it prevents abortion of babies 8 to 10 weeks old. At 10 weeks the unborn child closely resembles the overall shape of a newborn baby though much smaller. (See image in left column on this page.) Thus, SB9 anchors Kentucky’s interest in prenatal life to immutable characteristics of humanity rather than a judicially invented construct. (emphasis added)

Currently EMW aborts approximately 3000+ babies each year. To reduce that number by the percent noted, there would be only 300 abortions — still far too many. But it is a step in the right direction, just as the Fetal Pain bill that passed in 2017 reduced the number because it narrowed the window for abortion to 20 weeks, which had been 23 at EMW.

At this writing there are 51 documents in view on the PACER website, with the latest filed by the Plaintiffs on December 16, 2019. Doc 48 suggests to Judge Hale that a current case, SisterSong v. Kemp (Georgia’s Heartbeat Law), has recently been updated to permit only limited discovery for the defendant, and that a federal district court preliminarily enjoined Alabama’s near-total ban on abortion on Oct 29 (2019).

Doc 50, filed on December 12, cites the wording in the SisterSong v. Kemp case that “[t]he Supreme Court has repeatedly and unequivocally held that under no circumstances whatsoever may a state prohibit or ban abortions prior to viability, no matter what the state asserts to support it.”

Plaintiffs also attached the Georgia Judge’s order, which also states that the State Defendants are permitted in limited discovery to “rely upon ‘legislative facts,’ which are ‘of the type that reviewing courts often rely upon in considering whether constitutional precedents should be overturned….’ ” By attaching this order, it would seem that the Plaintiffs do not believe that Judge Hale will overturn a SCOTUS precedent.

The reason the SisterSong case was cited is that Kentucky’s attorneys argued against Summary Judgment prior to Discovery in part based on that case which initially had specified no limitation to Discovery.

Kentucky has argued for Judge Hale to deny the Plaintiffs’ motion for Summary Judgment based on:

  • Plaintiffs’ inadequate reasons why the Court should deny/overturn the will of Kentuckians shown in the two statutes
  • Discovery has been denied such that defendants —the Commonwealth— cannot fully defend its laws
  • Though the viability standard was established long ago, it has since been questioned in suits such as Casey, which noted: “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.”

Indeed! What if 4D ultrasounds had been around in 1973? Though ultrasound technology had first been used in the mid-1950s in Scotland, it was well into the 1970s before it became widely used in American hospitals.


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In the going-on-nearly-three-years legal challenge to Kentucky’s Ultrasound Law (HB2) of 2017, a new document was filed in late October. Due to the General Election focus, we initially missed this announcement by Gov. Bevin.

Plaintiffs did not accept the victory for the Ultrasound Law that the Sixth Circuit Appeals Court handed down last April, and asked the Court for an “en banc” review of the decision. The Court declined, so Plaintiffs asked SCOTUS to issue a Writ of Certiorari. That would force the entire “bench” of the Sixth Circuit to review the decision.

The attorneys in Bevin’s Administration and the Kentucky Cabinet for Health and Family Services who are defending the law, since AG Beshear refused to, filed an opposing brief in late October, asking that the petition for the Writ be denied. Their brief delineates the issue:

The “Question Presented” that is viewed as requiring “better judgment” is: Whether the Free Speech Clause of the First Amendment prohibits the Commonwealth of Kentucky from regulating the practice of medicine by requiring a medical professional, prior to performing a medical procedure, to provide the patient with information that is truthful, non-misleading, and relevant to the procedure.

Kentucky’s 33-page brief explains why there is no Circuit conflict over the question and no recurring question it needs to resolve, and that the Appeals Court ruling is correct.

They point out that the petitioners (EMW) argue that HB2 is not an informed-consent law. They say a disclosure requirement cannot be considered valid unless it is consistent with the informed-consent preferences of special interest groups like the National Abortion Federation and American College of Obstetricians and Gynecologists.

The link to the brief is in the bulletin from Gov. Bevin, shared above.

Our pro-life attorney team has done a superb job of summing up for SCOTUS what is going on in the case. But, with the General Election results, will this wonderful team be in place to address any new challenges? If not, we want to again commend them for their dedicated work to save lives. If AG-elect Daniel Cameron is called on to complete their work, we wish him Godspeed.

Cameron has appointed Steve Pitt, Gov. Bevin's General Counsel, as his counsel and special advisor. Attorney Pitt served as chief litigator for Kentucky's Defense against the legal suits challenging our pro-life laws.


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The Dismemberment Abortion bill that became law in spring 2018 is still in the court system. After being overturned at the District Court in Louisville last May, it was appealed to the Sixth Circuit Court. In mid-September, a flurry of Amicus Briefs were filed on behalf of EMW.

During the trial in Louisville, Defense (Ky) had argued that three methods could be used for humane fetal demise in place of tearing limbs off babies while they are alive. Plaintiffs vigorously argued that none of those— the KCl injection, Digoxin injection, nor the umbilical cord transection— was suitable, for numerous reasons. The Amicus briefs uphold the court arguments.

The first Amicus was submitted by:

  • THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS (ACOG)
  • THE AMERICAN MEDICAL ASSOCIATION (AMA)
  • THE NORTH AMERICAN SOCIETY FOR PEDIATRIC AND ADOLESCENT GYNECOLOGY (NASPG)
  • THE NATIONAL ASSOCIATION OF NURSE PRACTITIONERS IN WOMEN’S HEALTH (NPWH)
  • THE AMERICAN COLLEGE OF NURSE-MIDWIVES (ACNM) and
  • THE AMERICAN COLLEGE OF OSTEOPATHIC OBSTETRICIANS AND GYNECOLOGISTS (ACOOG)

Whew! That’s a lot of friends. If only these associations were friends of humankind, born and unborn.

They argue that the Commonwealth’s proposed demise methods are invasive, additionally risky, medically unnecessary, experimental, and unreliable, among other points. All of these were refuted by the Defense during the trial.

The second Amicus was submitted by numerous states, including:

  • NEW YORK, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, HAWAI‘I, ILLINOIS, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, NEVADA, NEW MEXICO, OREGON, PENNSYLVANIA, VERMONT, VIRGINIA, and WASHINGTON, and the DISTRICT OF COLUMBIA

This brief has a number of undue burden reasons.

The third was submitted by the

  • SOCIETY FOR MATERNAL-FETAL MEDICINE

Sounds so motherly.

Its main point is that the Potassium Chloride (KCl) injection method is not feasible in an abortion clinic. This was also refuted during the trial.

For background on this case, see here. An Amicus was filed by 16 states on behalf of Kentucky last July.



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Kentucky Right to Life

Kentucky's largest and oldest right to life organization and the official state affiliate of the National Right to Life Committee

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