Recently the Beshear administration called for release of Gov. Bevin’s pardon files. These would include records relating to both pardons and commutations by Gov. Bevin that are under Solicitor General Chad Meredith’s oversight.

KRLA has been very impressed with Attorney Meredith’s abilities. He represented Kentuckians in numerous legal cases brought against the pro-life laws passed by our General Assembly during the Bevin administration.

The Courier-Journal reported on July 23 that Holly Johnson, Beshear Finance and Administration Cabinet Secretary, asked the Fayette Circuit Court to order Meredith to turn over public records which he had declined to do in response to an open records request in May and a subpoena in June. Though he provided some records related to the investigation into alleged mismanagement of government funds, he did not release documents related to pardons by asserting that ‘attorney-client and work-product privileges’ prevented him from doing so.

We are sure that Attorney Meredith knows the difference between emails that are state property and emails and documents that comprise confidential case information.

The C-J article reports:

The Finance Cabinet's motion states that Meredith's justification for withholding the records is incorrect, as the emails and attachments related to Bevin’s pardons were part of his official jobs duties and created on state time with state resources.

“In short, they are the property and legal documents of the Commonwealth,” the motion states. “Mr. Meredith’s [sic] does not hold the privilege as to these records, cannot assert the privilege on behalf of the Office of Governor, nor could he do so against the very entity which seeks the production of these documents.”

Read more.

This seems like an ‘appeal to force’ (‘ad baculum’ logical fallacy for you students of the law), as it claims that the state has full rights to any communications, without respect to the legal principle and practice of client-attorney privilege, which is a norm undergirding the entire legal system.

For our pro-life lawsuits, It would mean that any individual, for example, one damaged by an abortion, could not expect her full conversation with a State attorney to be kept confidential, and only portions shared as deemed necessary in a trial. Obviously, a potential breach of confidence could lead to life-damaging public disclosures. What witness would ever volunteer to fully disclose evidences, if attorney-client privilege were not enforced?

To say that attorney-client privilege is nonexistent for state attorneys on state business, and that all state employees’ documents and emails are the property of the state is a disastrous idea, no matter which department, employee or state officer entertains the notion. The debate about ‘open records’ is an active one at this time, but that topic aside, the issue here is attorney-client privilege. That pillar, if removed, could bring the house down.

The same C-J article notes that Atty. Meredith is being considered for a nomination to a federal judgeship in Kentucky’s western district and has the support of Sen. McConnell.

Chad Meredith skillfully defended Kentucky in ACLU / EMW / Planned Parenthood lawsuits brought against the state both in the Fifth District Court and the Sixth Circuit Appeals Court.

The Fifth District Judges who heard the cases for the Ultrasound Law, the Transfer Agreement Law, the Dismemberment Abortion Law, and the Heartbeat and Anti-Eugenics Laws— Judges Hale, McKinley and Stivers— all ruled in favor of the abortion clinics.

The Heartbeat and Anti-Eugenics case hinges on an Appeals Court ruling.

FRANKFORT, Ky. — Chad Meredith has been appointed solicitor general for the Commonwealth of Kentucky, Attorney General-elect Daniel Cameron announced Wednesday. In this role, Meredith will serve as the state’s advocate for appellate litigation.

Meredith previously coordinated and oversaw appellate litigation involving executive branch agencies in the administration of former Gov. Matt Bevin.

“Chad’s experience advocating for Kentucky within the appellate court system makes him an ideal choice to serve as solicitor general,” said Cameron. “Many of Kentucky’s most pressing and significant legal issues are decided on appeal, and I know that Chad will represent the best interests of Kentuckians.”

Read more.

Attorney Meredith has argued many cases for pro-life laws, including the Transfer Agreement case at the Sixth District Appellate Court last summer.

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.

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.

The abortion distortion has dominated the pages of local newspapers and major TV outlets ever since the U. S. Supreme Court handed down its infamous Roe v. Wade and Doe v. Bolton decisions in 1973.

Even today, there are still “journalists” who erroneously report that abortion is legalized only in the first three months of pregnancy. Yet, despite an eventual nation-wide ban on the grisly Partial Birth Abortion procedure in 2003, a method that killed an estimated 5,000 babies a year, eight states and Washington, D.C. still permit abortion up until birth for any reason (Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, and New York).

The Southwestern Women’s Options clinic in Albuquerque, N.M., for instance, known as the Late-Term Abortion Capital of America, kills babies at 37-weeks gestation through poisonous injection. Within days, the unborn child suffers a heart attack. The woman is charged a staggering $17,000 for this third trimester procedure.

Recently, C-J opinion writer Kim Greene distorted the findings of her own Planned Parenthood-commissioned poll, saying it showed support for legalized abortion in Kentucky. That’s simply not the case. Numbers from that poll, as reported in a C-J story published on August 9, 2019, actually shows “18% said they believe all abortions should be illegal – though another 37% said abortion should be allowed only in ‘extreme cases’ such as for pregnancies resulting from rape or incest or to save the life of the woman.”

While 98% of abortions are performed in the U. S. for social reasons— not life of the mother or rape and incest— it is indeed a stretch, actually a distortion, for Greene to conclude that Kentuckians favor abortion.

The numbers simply don’t add up. The 18% who favor banning abortion added to the 37% who would only permit abortion in the very rare cases of life of the mother and rape/incest equals 55%. The last time I looked 55% is a majority. Therefore, PP’s very own poll shows a majority of Kentuckians (the 500 Democrats, Republicans, and Independents queried) do, in fact, reject abortion on demand!

But even if the numbers recorded otherwise, which they don’t — morality, objective truth, and irrefutable scientific evidence all point to the urgency to restore the right to life to unborn children.

In Kentucky, there is only one abortion clinic left! If abortions were so popular, why then are we– who love and cherish innocent human life and who believe women deserve better than the “right” to kill preborn children– witnessing the last gasp of a diabolical abortion industry, and the continuing renaissance of crisis pregnancy centers, who offer real and effective pre-natal and postpartum care to women facing unplanned pregnancies.

We laud Kentucky lawmakers and Governor Matt Bevin for fighting for life and passing pro-life measures, while defending them aggressively in the courts (something Democratic gubernatorial nominee Andy Beshear has refused to do as the Commonwealth’s Attorney General).

In May, the federal Sixth Circuit Court of Appeals in Cincinnati upheld Kentucky’s Ultrasound Law! Thanks to President Trump’s recent appointments to that court and the courage of a majority of state lawmakers and Governor Bevin, who passed and signed into law that life-affirming measure, women will now have the opportunity to view the ultrasound and, consequently, heart beat of their unborn child prior to an abortion!

Governor Bevin and Kentucky lawmakers have been honoring their civic and constitutional responsibilities through their pro-life convictions and actions. In the words of Thomas Jefferson, “The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government.”

The Opinion article refuted by Schu is here.

Chad Meredith (addressing the media), our state’s Chief Deputy General Counsel, argued to retain Transfer Agreements law in Kentucky at the Sixth Circuit Federal Appeals Court on August 8. Background on this case is here.

Many pro-lifers including KRLA staff and members heard the arguments and later participated in a media conference staged by Addia Wuchner, former representative for Ky’s 66th district. Reporters from WDRB-TV, the C-J and others covered the event and LifeNews has reported on it drawing from a story in CourtHouseNews.com.

Listen to the full proceedings from the hearing. As noted by CourtHouseNews, there is no timetable for the decision to be issued. Three judges heard the arguments by Atty. Meredith and attorneys for the EMW Clinic and Planned Parenthood. Two of them, Judges Chad Readler and Joan Larsen are recent appointees of President Trump. Judge Eric Clay was appointed by President Bill Clinton in 1997.

Aside: Congratulations to Attorney Meredith who was recently promoted to Solicitor General. Read more.

Note--if you visited recently and saw no video: The initial KET video was removed. This one may have more background noise and but it is the same speech.

Immediately after Kentucky’s HB5 and SB9 bills were signed into law, they were challenged by the ACLU for the EMW clinic. The Bevin Administration has filed a legal brief to defend them. A bulletin states:

FRANKFORT, Ky. (August 3, 2019) — Gov. Matt Bevin continued his fight for the unborn by filing a legal brief in federal court yesterday defending two pro-life laws passed by the 2019 General Assembly, a ban on discriminatory abortions and a ban on abortions after a fetal heartbeat is detected.

EMW Women’s Surgical Center, which performs 3,000 abortions in Kentucky annually, hired the ACLU to sue Kentucky over the constitutionality of HB5 and SB9. HB5 bans abortions based upon the race, sex, or disability of the unborn child. Gov. Bevin’s brief argues that the U.S. Supreme Court has never decided whether an abortion provider can perform discriminatory abortions. The brief provides expert testimony establishing that discriminatory abortions happen in Kentucky, noting nearly one out of every two unborn children with Down syndrome in Kentucky is aborted.

SB9 bans abortions after a fetal heartbeat is detected. The brief argues that SB9 promotes the Commonwealth’s interest in protecting human life. Expert testimony from the brief notes that the development of a fetal heartbeat is a significant milestone in the life and growth of an unborn child, which is why a heartbeat bill like SB9 is needed.

Read more.

Read the Brief here.

Background on these legal challenges can be found here.

On Thursday, August 1, Gov. Bevin held a media conference in front of the Governor’s Mansion. The topic was the July 31 fundraiser for Democratic gubernatorial candidate Beshear that was hosted by EMW clinic owner Dr. Ernest Marshall. KRLA member Schu Montgomery attended and provided photos and narrative for this post:

Governor Matt Bevin emphatically stated that it is “blood money straight up”— the $4,000 contribution given by Dr Ernest Marshall, owner of the Louisville’s EMW abortuary.

“It is the job of the attorney general to defend the laws of the Commonwealth, whether it’s the heartbeat bill or dismemberment or eugenics bills,” Bevin lamented. “This is blood money - using monies from killing Kentuckians to fund a guy whose job it is defend the laws of this state— but refuses to do so.”

Gov. Bevin asserted that the Ernest Marshall’s maxed out on their contribution to Beshear on March 19th during the primary— then four days later the AG removed himself from the lawsuit defending two of the pro-life measures passed by the legislature!

Bevin urged the media to inform the public of this blatant disregard for human life and the peoples’ right to have their laws defended by the Commonwealth’s chief law enforcement officer.

Congratulations to Governor Bevin and running mate Ralph Alvarado, Secretary of State candidate Michael Adams, Attorney General contender Daniel Cameron, and Commissioner of Agriculture Ryan Quarles.

We must all ask ourselves: How can we help the Republicans win in November? Think of any who did not vote yesterday. Ask them why. Explain what is at stake. Urge them to vote.

The KRLA PAC will be active to support your efforts.

Our endorsed candidate for AG, Wil Schroder, made a great showing and we look for him to succeed in future state races.