Don’t ever think that AG Daniel Cameron is not bearing down on current pro-life litigation.

Behind the scenes, the Office of the Attorney General with its cadre of crack attorneys is working HARD to seize the day for Kentucky’s laws that are held up in the court system because of ACLU-led challenges.

The Heartbeat and Anti-eugenics Laws that passed in 2019 have been expertly defended. As predicted in the eighth post of this blog series, Judge Hale remanded (put off) the EMW/ACLU’s motion for summary judgment on March 9, 2020, pending the Sixth Circuit Appeals Court resolution of Ohio’s “Preterm-Cleveland v. Himes” lawsuit that litigates a right to abortion if based on a fetal diagnosis of Down syndrome.

Hale did so following a concerted effort by five law firms (including the ACLU Foundation-NY, NY) to prevent AG Cameron from continuing the defense of this suit, which was forcefully countered by our AG and three of his attorneys, pictured. Their 12-page brief was masterful! Anyone can read it on the PACER (public access to court electronic records) website.

Their arguments against the EMW/ACLU’s claims that the AG is not entitled to pursue the case are clearly superior and underscore his duty to defend Kentucky Law. It is hard to understand how the case could be decided based solely on how the Sixth Circuit rules on the Ohio Down Syndrome Law.

The Sixth Circuit heard oral arguments on March 11, 2020. We will find out in the not distant future if a pre-born baby who tests positive for Down syndrome is fair game for abortionists in Ohio and Kentucky. This ruling could also determine the fate of Kentucky’s Heartbeat and Anti-eugenics Laws.

The suit against Kentucky’s Heartbeat and Anti-Eugenics Laws is intent on maintaining the status quo. Kentucky’s defense asks Judge Hale to see Life in a new and better light.

Our wonderful attorneys want legal discovery to begin. They want the judge to consider whether EMW’s case actually benefits Kentucky women, physicians or the citizens who elect legislators to represent their views. We expect our lawmakers to create statutes that are in line with legal common sense and not merely court precedents based on tired, irrelevant rulings and opinions.

Kentucky, this is an opportunity for new vistas to a brighter future!

Let’s get personal

HB5 was delivered to Gov. Bevin for his signature on March 14, 2019, but had not yet been signed into law when EMW’s attorneys filed suit to oppose it.

In their opening document on March 14, 2019, the attorneys for EMW state that …“in violation of more than four decades of Supreme Court jurisprudence”, HB5 is unconstitutional because it bans abortion under certain circumstances, prior to viability.

While viability is their central point, many points are stated— 49 of them in their first document. Let’s look at point number three.
3 - “Plaintiffs challenge the Act because it undermines their mission to honor and support the decisions their patients make, whether it is to continue or to end a pregnancy based on their own personal circumstances and what is best for themselves and their families.” HB5 wrests the woman’s personal decision to get an abortion, and deprives her of the ability to make this personal decision.

HB5 has other persons in view. In part, the new law reads:
The Supreme Court of the United States of America has recognized that states have a legitimate interest in protecting the life of the unborn; and

• Recognizing the human rights of an unborn child does not contravene prior Supreme Court jurisprudence nor undermine a woman’s right to self-determination or bodily autonomy, but instead upholds the state's legitimate interest in protecting the lives of unborn human beings and the rights of persons regardless of sex, race, color, national origin, or disability; and
• The right to bodily autonomy and self-determination is separate and distinct from the termination of a pregnancy based on the unborn child’s sex, race, color, national origin, or disability; and
• Moral and philosophical concepts of dignity hold that all human beings are entitled to receive ethical and humane treatment and are to be respected and valued in all phases of life, regardless of sex, race, color, national origin, or disability…

Our attorneys upheld all these reasons (and others) why discriminatory abortions are unfair as well as prohibited by state, federal and international laws that support the rights of all people to dignity, equality, and freedom from discrimination that is based on sex, race, color, national origin, or disability.

It is obvious we have a dilemma of competing rights. Judge Hale must decide whether to favor the right to abortion or the right to life of pre-born babies and the rights of states to protect them. Either way, he can quote from the law.

Which view will he take?

The initial document filed March 14, 2019, by EMW’s attorneys states its case as a constitutional challenge to HB5, the Anti-eugenics Law. Then on March 15 the complaint was amended to include SB9, the Heartbeat Law, even before these had been signed into law by Gov. Bevin.

Both laws were viewed as unconstitutional by the Plaintiffs. The U.S. Constitution provides for a right to privacy in Amendment 14, and that is how Roe v. Wade was framed to permit abortion.

What does it mean to be a strict constitutionalist? On the surface, it sounds good, but the assault on the common values of the America that was once a Christian nation, has twisted our constitution so that now a judge can view the right to abortion as sacrosanct if it is performed prior to viability. And today the term Christian commonly includes pro-abortion church leaders and members.

The Heartbeat Law makes perfect sense to the pro-lifer who views the pre-born baby as a person with standing before the law. After all, in Kentucky we have laws to prosecute anyone who wantonly causes the death of an unborn child in a criminal manner. We recognize the fetus as a person.

But on the other hand, we uphold Roe v. Wade as the law of the land, and call abortion a woman’s right. We say it is constitutional based on the 14th amendment,
A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.

So it is that the Plaintiffs have argued that both HB5 and SB9 are unconstitutional.

They won a Temporary Restraining Order in part based on this reasoning and could win the case at the District level as well.

We think our attorneys’ reasoning is much better. We will look at that in the next post.

VIABILITY OR PAIN?

This week the Plaintiffs filed a new document referencing the Alabama law to ban abortion (nearly totally) that a federal district court has blocked, stating:
Alabama’s abortion ban contravenes clear Supreme Court precedent. It violates the right of an individual to privacy, to make "choices central to personal dignity and autonomy." Casey, 505 U.S. at 851 (opinion of the Court). It diminishes "the capacity of women to act in society, and to make reproductive decisions." Id. at 860. It defies the United States Constitution.

The concept of viability, as already noted, is currently defined as "the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception." This definition has been disallowed by the Pain-capable rule that restricts abortion at 20 weeks of pregnancy when an unborn child can feel pain. Kentucky passed the Pain-capable Law in 2017.

As well, viability no longer is limited to 24 weeks; LifeNews reports on a baby born at 21 weeks, the youngest ever to survive, who is doing vey well now. The article states:
Research published in 2015 in the New England Journal of Medicine found that 23 percent of premature infants survive as early as 22 weeks of pregnancy, but some hospitals have policies against treating babies at this early age.

Many, if not most, pro-lifers and pro-life medical authorities believe that a fetus much younger than 20 weeks can feel pain. The legendary Silent Scream video of an ultrasound that shows an abortion of a 12-week fetus reveals the pre-born baby thrashing to avoid the abortionist’s instrument and a wide open mouth when she is struck.

The seamless process of fetal development is so wonderful and amazing. To think of its interruption for callous reasons or from ignorance is heart-breaking.

The construct of viability presumes the mother and child are at cross purposes. The infant must be able to fend for herself or himself to be worthy of protection against abortion. Yet, the "viable" child is hardly independent and neither is the mother. Both need lots of help.

"No man is an island … " (John Donne, 1572-1631) We are interdependent. The Supreme Court needs new perspectives.

This blog series will pick up after the November 5 General Election.

Whatever became of the Heartbeat (SB9) and Anti-eugenics (HB5) bills that became law last March? Will discovery be allowed for the state of Kentucky to defend these laws?

You may be asking, what is discovery in a legal context? Here is Dictionary.Law.com’s definition:
n. The entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

Why has discovery not been permitted so far? Here begins a brief blog series to examine the EMW Clinic legal case against these laws.

We will look at documents filed by our attorneys and EMW’s on the PACER website. PACER is the Public Access to Court Electronic Records website that lets anyone create a login and search for case information.

If discovery is permitted by the judge, it is sure to be enlightening, but we may be on the brink of an opposing conclusion. Nevertheless, assuming Gov. Bevin is re-elected, the case probably will be pursued to the Appeals Court.

MANY ATTORNEYS

Four law entities are pursuing the case to quash HB5 and SB9 on behalf of the EMW clinic:

• The American Civil Liberties Union Foundation, NY, NY
• Ackerson & Yann, PLLC , Louisville, KY
• ACLU of Kentucky Foundation, Louisville, KY
• O’Melveny & Myers, NY, NY

Kentucky is defending this case with attorney services from the Office of the Governor and the Cabinet for Health and Human Services since our Attorney General refused to defend them.

The opposition has termed HB5 the Reason Ban and SB9 the 6-week Ban. They have lumped these together in their suit that initially sought both a temporary restraining order and/or a temporary injunction as well as a permanent injunction, and now requests a summary judgment— asking the judge to reject these laws as unconstitutional, to dismiss the suit, and to permanently enjoin the defendants (our state) from "enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with SB9 and HB5…". (Enjoin in a legal context means to order.) That means never again could these issues be revisited in any legislation our senators or representatives propose.

The Judge in charge of this case is David J. Hale. From the Ballotpedia website, we read: …President Barack Obama nominated Hale to fill a vacancy on the United States District Court for the Western District of Kentucky. Hale was confirmed to the court on December 3, 2014, by a voice vote of the Senate.

HB 5, AN ACT relating to the human rights of unborn children to not be discriminated against, has been reported favorably and noted on the Legislative Calendar. A Corrections Impact Statement has been filed. See here. More on the Impact statement is here.

HB 148 has been engrossed and passed to the Senate Public Protection Committee, and SB 227 (see below in blog) has been introduced and passed to that committee. “Engrossed” means a bill is in the process of discussion and voting, and its wording is subject to amendment.

A Resolution, HR 135, has been introduced in the House to condemn the passage of the “Reproductive Health Act” by the New York State Assembly. Take a moment to read it. Its points are clear. States can legislate to curtail the carnage in Roe v. Wade, and we can speak out. Thank you, Kentucky Pro-Life Caucus and others in our legislature who are determined to stand for Life.