UPDATE | 5-24-23

The Sixth Circuit Court of Appeals has issued an opinion remanding the appeal for HB3 to the US Western District Court in Kentucky, recommending that the District Court vacate its injunction orders.

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From the Desk of Addia Wuchner, RN, Executive Director KRTL & The RTL Education Foundation of Kentucky

Today is day 280 since August 1, 2022— the last day abortion facilities in Kentucky were open. In fact, it is nine months, seven days past August 1, 2022! June 24, 2022, the day Roe v. Wade was oveturned, was 317 days ago.

Think about it ProLife Friends, and join us as we thank Heaven… Mothers scheduled for abortions on August 2, 2022 – by now those babies would be born and taken their first breath.

Of course, we know woman may elect to travel out of state to have an abortion, but how many babies know life? How many precious lives have been saved since August 2, 2022?

But Kentucky Right to Life, the Attorney General of Kentucky and our KRTL legal team are still in the Courts defending Kentucky laws and defending LIFE.

Following is an update on the three ProLife matters pending in the Courts.

1. HB 3 - United States Sixth Circuit Court of Appeals, Cincinnati
2. Kentucky Trigger Law - Louisville Circuit Court, Division 3
3. Buffer Zone - U.S. Western District Court, Louisville

1 First date in court - June 15, 2023, 9 AM, Cincinnati Court of Appeals

HB3, the ‘omnibus pro-life bill’ Humanity in Healthcare Act that became law in 2022, will be further litigated. Aspects of its requirements have been challenged by plaintiffs EMW and Planned Parenthood. Please watch for more news about this upcoming hearing. Pray for pro-life law to be upheld and protected. For background on this litigation, see this article list.

2 Next date in court - June 28, 2023, Time TBA, Judge Perry Louisville Circuit Court

We’ll call this one the “KSC (Kentucky Supreme Court) case.”

Briefly, the case was on appeal from Judge Mitch Perry, to ask the KSC to overrule the KY Appeals Court decision to ‘stay’ his order to reopen the abortion clinics. A sizable list of articles about this litigation is on this Forum for anyone who wants to follow the timeline.

A Status hearing to follow up on the February 16 (2023) KSC 150-page ruling was held in Judge Perry’s Jefferson Circuit Court on Monday, April 24th. The KSC ruling stated that the abortion clinics did not have standing to bring their case:

After thorough review, we hold that the abortion providers lack third-party standing to challenge the statutes on behalf of their patients. Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf. We affirm the Court of Appeals’ holding that the circuit court abused its discretion by granting the abortion providers’ motion for a temporary injunction and remand to the circuit court for further proceedings consistent with this opinion.

During the Status hearing, the plaintiffs reported that they had not been able to find a woman willing to represent their lawsuit, as one who would have standing before the KSC.

The Federal standard for standing that had been adopted by the KSC in 2018, states: “for a party to sue in Kentucky, the initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, (3) redressability. In other words, [a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”

The defendant (appellant) for this appeal, was Daniel Cameron in his capacity as Attorney General. The appellees were the EMW Clinic, their owner Ernest Marshall, MD, on behalf of his patients, and Planned Parenthood Great Northwest, on behalf of itself, its staff and its patients.

The ‘injury’ was the closing of the abortion clinics as legislated by Ky’s ‘trigger law’— the Human Life Protection Act to close the clinics if/when Roe was overturned— enacted in 2019 and enforced. Read here.

The KSC ruled that the appellees could not plead on behalf of their patients because the clinics were not, by legal definition, injured.

The appellant attorney arguing for Cameron, Christopher Thacker, objected to adding a plaintiff —a potential patient of the clinics. He insisted the only issue before the Court was to decide whether to uphold the ‘trigger law.’ Judge Perry agreed with Mr. Thacker and the AG's position.

Judge Perry extended the proceedings, setting a new Status hearing on Wednesday, June 28, to establish the outcome.

It is important for all Right to Lifers to pray about his court case.

In the proceedings before the Kentucky Supreme Court, only one justice, Robert Conley, concurred with Justice Lambert’s opinion which is the ‘holding’ for the case.

The Chief Justice, Laurance VanMeter, concurred in result only. This means that though he agreed with the final result of the holding, he did not agree with the conclusions used to reach it or perhaps with some points of the decision.

Justice Angela Bisig, new on the KSC this year, concurred in part and dissented in part by separate opinion in which Justice Michelle Keller joined. Keller concurred in part and dissented in part by separate opinion in which Bisig joined. (Two peas in a pod.)

Justice Christopher Nickell and new Justice, Kelly Thompson, concurred in part and dissented in part in separate opinions.

So, as we see, the upcoming June 28 hearing in the Circuit Court may take advantage of these dissents to pry open fresh litigation.

Pro-life Jefferson Countians may be rightly disappointed that Bisig, the 4th District KSC representative, is NOT pro-life.

3 Waiting on court date - Stalled - U.S. Western District Court, Louisville

The third matter still in the courts is the Louisville Buffer Zone case. Background on this is found here. The Cincinnati Court of Appeals ruled in favor of the pro-life plaintiffs, KRTL and Sisters for Life. We heard from many KRTL members and friends who appreciated our involvement in objecting to the Metro Louisville Council’s ordinance mandating a ‘buffer’ zone of 10 feet around the EMS to prevent sidewalk counseling.

Our fine attorney Chris Wiest is asking Judge Rebecca Jennings to permanently enjoin the ordinance so that the case will have an official end, upholding free speech. The EMW Clinic claims that it is now a moot issue since no sidewalk counseling is taking place due to the closure of the clinic.

Lights are on in the abortion clinics. Physical abortions are not being performed, but calls are fielded, and there is not yet a definitive end to abortion in Kentucky until the court cases are closed.

Please watch the KRLA Forum for news and comment.

From the desk of Addia Wuchner, RN, Executive Director

"For Kentucky Right to Life, chapters and pro-life Kentuckians, today's 4-3 ruling by the Kentucky Supreme Court is another historic moment. It's a moment to rejoice. We're extremely grateful for Attorney General Cameron and his entire team and the stellar work that they've done defending the laws of Kentucky.

"Abortion facilities have been closed for over 198 days and they remain closed. Lives will continue to be saved. But we clearly understand that… the battle is far from over. We will continue to work, pray, and advocate to protect the lives of unborn children and to work with their moms to make abortion unthinkable.

"With the overturning of Roe, the matter of abortion was appropriately returned to the States. We are now experiencing how democracy should work.

"The Justices are to precisely rule on matters of legislation so they can consider these issues in constitutional rather than political terms. The Courts are granted the great power of judicial review, the power to uphold or strike down laws passed by federal or state legislatures, on the grounds that they violate the basic principles of the Constitution.

"Today we celebrate, we have turned the page; this chapter has a happy ending. But this book on life is far from over."

by Addia Wuchner, RN, Executive Director, KRTL

“No woman can call herself free who does not control her own body.”

“My body! My choice!”

“Nobody should be able to tell us what we can and cannot do.”

“Nobody should be able to take our rights away from us.”

“Bans off our bodies”

All of these quotes were found on webpages with content pushing a woman to think of herself as a tower of strength without regard for common female values. The webpages or videos are associated with Planned Parenthood, a corporation that makes A LOT of money from performing abortions. Would anyone consider that a 'conflict of interest'?

The idea that a woman ought to have complete autonomy over her own body is a mantra for unicorns.

We are reminded of Abby Johnson’s testimony during the 2019 Ky Legislature Senate hearing for the 'Heartbeat' Bill. Abby is a former Planned Parenthood clinic director, who testified for the bill sponsor, Sen. Matt Castlen. She said A LOT, even: “Abortion is not normal; taking the life of your own flesh and blood who has your own DNA is not normal. And there are healing resources available.” You can hear her entire testimony here.

Read thousands (or as many as time permits) of aborted women’s testimonies here.

Expectant females must insist on the right to be free of heavy-handed, discouraging rhetoric that pushes them to deny any role to men from people who will never encourage them to give birth or to love their child or to place the child for adoption.

None of us lives for herself alone. People need each other. Thousands of couples wish to adopt.

Stop and think, ladies. Why not rather say, “Bans Off Our Hearts!”

MEDIA STATEMENT provided by Addia Wuchner, RN, Executive Director, KRTL | 8-18-22

Pro-lifers are ecstatic about the Kentucky Supreme Court decision today that concurs with the state Court of Appeals ruling— to keep the abortion clinics closed as the challenge to our Trigger and Heartbeat Laws is litigated.

This means that babies and mothers are safe from abortions in Kentucky for now. The Court has stated it will not take up the issues raised in the case until November 15, 2022, a week after the November 8 General Election.

We are fully engaged in the Yes-For-Life campaign to ensure passage of Ballot Amendment #2. Voting YES will stop the radical abortion agenda in our state, and it will prevent taxpayer funding of abortion. The amendment ensures that our duly elected legislators make the laws of our state, as our Constitution requires.

Thank you Attorney General Daniel Cameron for your strong leadership in standing up for the right to life. General Cameron stated in a media release today,

“In Dobbs, the United States Supreme Court returned the issue of abortion to the elected representatives of the people of each state. So that the promises of Dobbs may be realized, and to avoid being embroiled in another 50 years of political acrimony, courts around the country, and here at home, must allow our policy makers in the General Assembly to speak for the people they represent. We are pleased with this victory for life and the rule of law and will continue to prepare for the arguments the Court has scheduled.”

MEDIA STATEMENT provided by Addia Wuchner, RN, Executive Director, KRTL | 8-1-22

On Monday evening Judge Larry E. Thompson of the Kentucky Court of Appeals granted an emergency ‘stay’ that will spare the lives of Kentucky unborn babies scheduled to be terminated by abortion on Tuesday.

Judge Thompson noted, “One cannot discount the reality that any abortions performed in the interim period, in which the pending CR 65.07 motion and the issue of constitutionality of the statutes make their way through the courts, cannot be undone should Movant prevail on the merits in his defense of the statutes.”

We are grateful for these courageous words and the wisdom of Judge Thompson.

This ruling was in response to the temporary injunction issued by Jefferson Circuit Judge Mitch Perry that allowed abortion in Kentucky to continue. His injunction ignored Kentucky’s duly enacted ‘Trigger Ban’ and Heartbeat Law. In granting the stay, Judge Thompson recognized the sad reality that dozens of innocent human lives would be irretrievably lost before the case is finally decided unless the Trigger Law was allowed to be enforced.

Kentucky Right to Life salutes Attorney General Daniel Cameron and his team for their perseverance and legal acumen in defending the laws of the Commonwealth and our Kentucky Constitution.

By Calvin Freiburger | National Right to Life News | July 26, 2022

Roe v. Wade can no longer be used in court to claim a constitutional “right” to abortion, but a judge in Kentucky has asserted a new rationale for blocking legal protections for the preborn.

On Friday, Jefferson Circuit Court Judge Mitch Perry granted abortion facilities in the Bluegrass State a temporary injunction against enforcement of two pro-life measures, a heartbeat-based abortion ban and a general abortion ban designed not to take effect until Roe was overturned, which together effectively prohibit nearly all abortions.

Perry claimed there was a “substantial likelihood” that the laws “violate the rights to privacy and self-determination” as well as to equal protection and religious freedom under the Kentucky Constitution, and suggested that the trigger law was “unconstitutionally vague” and an “unconstitutional delegation of legislative authority.”

Republican state Attorney General Daniel Cameron rejected Perry’s assertions about the state’s constitution. Cameron has previously argued that the “non-enforcement of even ordinary statutes amounts to irreparable harm. The non-enforcement of the Human Life Protection Act and Heartbeat Law amounts to something far more grave. These laws prohibit what the General Assembly has determined is the unjustified taking of unborn human life. So every day that these laws are not enforced is a day in which unborn children of the Commonwealth perish.”

Kentucky’s 15-week abortion ban currently remains in effect.

The ruling reflects plans pro-abortion activists have mulled for years to root abortion-on-demand in state constitutions rather than the U.S. Constitution, to insulate it from action by the U.S. Supreme Court. Of particular note is Perry’s assertion that the laws’ premise of life beginning at conception is “a distinctly Christian and Catholic belief,” enforcement of which constitutes an establishment of religion.

“Other faiths hold a wide variety on when life begins and at what point a fetus should be recognized as an independent human being,” Perry said. “The laws at issue here, adopt the view embraced by some, but not all, religious traditions, that life begins at the moment of conception. The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.”

Read more.

MEDIA STATEMENT provided by Addia Wuchner, RN, Executive Director, KRTL | 7-22-22

Today, July 22, 2022, Jefferson Circuit Judge Mitch Perry issued a ruling to continue blocking the Humanity in Healthcare Act of 2022 and the ‘Heartbeat Law’ of 2019. Abortions in Kentucky continue to be performed, despite the overturn of Roe and the “Trigger Law” passed in 2019 in a bipartisan vote. That law ended abortion in Kentucky when or if Roe was overturned, with the exception of the health risk and medical condition of the mother.

Let me be direct, Kentucky’s battle for the human rights of the child is in the courts because Planned Parenthood, ACLU and EMW seek to have a Kentucky judge and our courts undermine the laws of the Commonwealth.

We find today’s decision by Judge Perry an exercise in raw judicial power on behalf of the abortion industry.

What is most disturbing is that Judge Perry wrote in his opinion, “the court finds any harm the defendants may suffer is outweighed by the interests of the plaintiffs,” which effectively means he believes that the abortion providers’ interest outweighs the life of a human child.

Kentucky’s laws to push back the aggression of the Roe decision, reflect the values of Kentuckians that honor the humanity of both the woman and her child. For over 100 years, the laws of the Commonwealth have upheld the intrinsic dignity of each and every life, defined in our Constitution as beginning at conception.

As prolife advocates, today’s ruling only confirms our mission this November to pass Constitutional Amendment 2, ‘Yes for Life,’ so that no politician, president, legislator or judge can invent the right to abortion based on political ideologies or interpretations of our constitution or the influence of any extremist multimillion dollar industry representing their own interests.

MEDIA STATEMENT provided by Addia Wuchner, RN, Executive Director, KRTL | 7-8-22

Two weeks ago, in the majority opinion, written by Justice Samuel Alito, the High Court noted: Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

“Following the Dobbs decision, which returned the debate on abortion to Congress and the state legislatures, we have continued to witness concerted efforts by the Biden administration under extreme pressure on behalf of the abortion industry to execute their plan to promote and expand abortion under the umbrella of protecting women’s health,” said Addia Wuchner, executive director, Kentucky Right to Life. “Misinformation and deceptive statements presented by the abortion providers has been nothing more than scaremongering intentionally directed at the very women that they profess to care about. The President’s speech today and his Executive Order reflect the same tactics.”

To be perfectly clear:

• ProLife legislation, explicitly makes clear that treatment for miscarriages does not fall under the legal definnition of abortion.
• No law exists that “outlaws” the treatment of ectopic pregnancies. An ectopic pregnancy is a condition where the embryo developing outside the uterus, that must be carefully monitored by the woman’s healthcare specialist to see what medical intervention is needed, which may include surgery.
• No law exists that “outlaws” contraception or infertility care.

Additionally, this past May, KRTL joined other pro-life leaders publicly affirming that we are vehemently opposed to women being prosecuted for having or seeking an abortion. An open letter to state legislators stating the opposition of the movement to the prosecution of women was signed by over 70 pro-life groups.

Wuchner stated, “Recently, in almost every debate and discussion about the subject, pregnancy is presented a barrier and destructive to a women’s future. We believe Kentucky women deserve better, they deserve truth and options. We believe all women deserve better.’’

The 1973 Roe decision, ushered in 49 years of legal violence on the unborn child and a distortion of women’s health care. The abortion industry has strategically sanitized the discussion on abortion. The humanity of the child is almost nonexistent in the discussion, when the child is referred to as “pregnancy tissue” by the abortion industry. But, make no mistake, abortion is the intentional ending of the life of another human being, and it is discrimination to act without considering the moral status of the human child.

“I find today’s executive order by President Biden, which is rather vague and lacking clear guidance, is in reality an “exercise in raw political power’’ on behalf of the abortion industry. The abortion industry with deep, deep pockets, under the guise of caring about women’s health, ends the life of preborn children”, Wuchner stated. “As committed pro-woman and pro-life advocates, Kentucky Right to Life has the obligation to call out such deceptive actions. We will continue to work with and challenge today’s leaders to explore opportunities that focus on women and children and assist them in finding solutions.”

Kentucky’s laws surrounding abortion have stood the test time reflecting the values of Kentuckians, that honors the humanity of both the woman and her child. Kentucky first enacted laws in 1910 restricting abortion except to protect the life of the mother. For over 100 years, the laws of the Commonwealth bore witness to the intrinsic dignity of each and every life from conception. In 2019, in a bipartisan vote Kentucky Legislators passed the Trigger Law, that effectively ended abortion in Kentucky with the overturning of Roe, with the exception of the health risk and medical condition of the mother.

“Our Kentucky battle for the human right of the child is in the Courts today, because Planned Parenthood and the ACLU seek to have Kentucky Judges and the Courts undermine the laws of the Commonwealth. As pro-life advocates, it is our mission this November to pass Constitutional Amendment 2, so that no politician, no president or legislator or judge can invent the right to abortion based on their own political beliefs or the influence of any extreme multimillion dollar industry’’, said Wuchner.

UPDATE | 7-7-22

KRTL prayed outside the Jefferson Co. Justice Center and attended the full 'bench' trial on July 6. For now--- Abortion services will remain available in Kentucky while a judge considers whether to grant an injunction blocking two state laws that would obstruct access to the procedure. Watch for updates.

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MEDIA STATEMENT provided by Addia Wuchner, Executive Director, KRTL | 6-30-22

Last week, pro-life Kentuckians and Americans rejoiced at the ending of five-decades of federal judicial overreach as Roe v Wade was overturned in the Dobbs decision.

Sadly today, Judge Mitch Perry with the Kentucky 30th Circuit Court, 3rd Division, issued a temporary restraining order that will now allow Kentucky’s two Louisville-based abortion facilities to resume the taking of innocent life.

“We are deeply troubled by this ruling because it clearly circumvents the bipartisan Human Life Protection Act that was overwhelming passed by the Kentucky State Legislature in 2019, and became enforceable last Friday with the United States Supreme Court’s decision which overturned Roe v Wade.

“Judge Perry by issuing this order is allowing the reinstatement of abortions at Planned Parenthood and EMW Center”, said Addia Wuchner, Executive Director, Kentucky Right to Life.

“We fully support Kentucky’s Attorney General Daniel Cameron and his team as they continue to defend this law and protect the lives of the innocent unborn children in our Commonwealth through the judicial process,” Wuchner added.

The action taken today by one judge further underscores the importance of saying Yes for Life by passing Constitutional Amendment #2 that will be on the Kentucky ballot this coming November 8th.

Ninth in a Series: Pro-life Laws Under Attack

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.

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.

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.

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.

Fifth in a Series: Pro-life Laws Under Attack

Continuing from our previous post, let’s look at some of the points made in Document 5 of the Plaintiffs. Our comments are in green for differentiation.

Point 1 says, …“the 6-week Ban will prohibit approximately 90% of the abortions currently performed in the Commonwealth. Furthermore, the Reason Ban makes it a crime to provide an abortion for a woman whose decision is influenced by either a diagnosis or the potential for a diagnosis of a disability, or the sex, race, color, or national origin of the embryo or fetus. Both Bans violate the Fourteenth Amendment to the United States Constitution, and will inflict irreparable harm on Kentuckians if they are allowed to take effect.”

If discovery were allowed, this claim would be challenged. What is ‘irreparable harm’ in this context? On the PubMed subsite of the National Center for Biotechnology Information, it is stated:
Since estrogen, which increases breast cancer risk, is secreted during the first half of pregnancy in order to stimulate breast growth, abortion at that time will expose the mother to high concentrations of estrogen when cells are undifferentiated. (In ER-positive breast cancer, cancerous cells receive their growth signals from the hormone estrogen.)

If Judge Hale were to search for information on the link between breast cancer and abortion, he would have a very hard time finding any association. Google has lined up the pro-abortion sources to answer this question through its “autofill” search results. That is what happens when a single search engine becomes dominant.

However, the National Right to Life website offers many articles to confirm the fact.

Breast cancer is irreparable harm, and so is the devastating experience of aborting ones own child. The recent decision to have a woman view an Ultrasound of her fetus, if she desires to, by the Sixth Circuit Appeals Court stated, in part:
As was argued in a related case (Gonzales v. Carhart), the woman must live with her decision, and since it is an established fact that some women come to regret their abortion, experiencing depression and more, the importance of informed consent is incumbent upon the provider.

In Doc 5, Point 27 states: Legal abortion is one of the safest medical procedures in the United States, and is substantially safer than continuing a pregnancy through to childbirth.

What would discovery bring to light?

Point 51 says, If a woman is forced to continue a pregnancy against her will, it can pose a risk to her physical, mental, and emotional health, and even her life, as well as to the stability and wellbeing of her family, including her existing children.

Again, discovery would bring to light the immense, documented damage that abortion does to women physically and emotionally, and to her ‘existing children’. (Was that a slip of the tongue?)

Finally, Plaintiffs asked the Court:

A. To immediately issue a temporary restraining order (TRO) and/or preliminary injunction, and a permanent injunction, restraining Defendants, their employees, agents, and successors in office from enforcing the Act.
B. To enter a judgment declaring that the Act violates the United States Constitution.
C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C.-1988.
D. To grant such other and further relief as the Court deems just and proper.

Despite Kentucky’s objections, the TRO was approved by Judge Hale on March 15, a day after the Heartbeat bill passed the Kentucky Legislature.

Fourth in a Series: Pro-life Laws Under Attack

The first document of the EMW suit against the state, filed on March 14, focused only on HB5 which had passed both houses by March 13. Document 1 stated reasons for the Court to immediately grant a temporary restraining order (TRO) or a preliminary injunction as well as a permanent injunction.

The Plaintiffs’ attorneys argued that if the law were to take effect, EMW and Ernest W. Marshall, MD, would be forced to turn away patients seeking ‘abortion care’. This would cause the patients irreparable harm, including the loss of their constitutional right to obtain an abortion and their ability to make fundamental decisions about their health care.

No matter which lawsuit is pursued, the abortion side focuses on the woman, never the child. Later, in point 48 (of 49 points) it is alleged that the Plaintiffs will be subjected to irreparable harm, and in point 1 they say that Kentuckians will be. They will argue that the balance of harm tips decidedly in EMW’s favor.

Doc 1 was quickly followed with Doc 2 which was a Memorandum of Law in support of the motion for a TRO (etc). In it, EMW’s attorneys cited numerous legal precedents and argue that the Casey trial, a related case, explained that protection for the abortion right reflects the fact that

“[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Casey, 505 U.S. at 851 (1992)

Here we find a new opportunity to see Life afresh. What is at the heart of liberty? Is it really the right to define one’s own concept of existence (etc)? Or, is it not the societal duty to maintain social order for the good of human beings with a view to future generations? Is license the heart of liberty or is it not intelligent restraint?

SB9 combined with HB5

It quickly became necessary for EMW to include SB9 with HB5 in the suit against the state, when SB9 was sent to Gov. Bevin for his signature on March 14. Document 5, filed March 15, the “Verified Amended Complaint” with 58 points, does this. In it, the laws are re-named “The Reason Ban” and “The 6-week Ban”.

The Plaintiffs’ argument is the same: “In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four decades of precedent affirming Roe’s central holding, the two Bans criminalize pre-viability abortions.”

In the next post we will look at some of their reasons to grant the TRO and/or injunctions.