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International norms: MOST European nations do not allow elective abortion (8) or limit it to 15 weeks or earlier (39). In contrast, 0 of 50 U.S. states limit abortion to 15 weeks or earlier. In fact, the USA is among a ‘Group of 7’ nations which do allow late-term abortions. This G7 includes: Canada, China, the Netherlands, North Korea, Singapore, Vietnam and the United States.
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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.
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.
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.
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.
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.
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.
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?
Second in a Series: Pro-life Laws Under Attack
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.
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.
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Posts on this page
3/31/2020 7:53:08 PMWatch for a decision from the Cincinnati Appeals Court on Ohio House Bill 241
12/26/2019 8:46:15 PMThe preliminary injunction against Ohio law (HB214) to disallow abortion if based on Down syndrome prognosis, could be reversed.
12/26/2019 8:38:58 PMDefendants argue for humanity of doctors to be upheld and humanity of child to be respected
12/26/2019 8:29:23 PMThough the viability standard was established long ago, it has since been questioned in suits such as Cas…
12/9/2019 2:15:32 PMCourt continues to deny discovery in case against 2019 pro-life laws
Temporary Restraining Order immediately requested by EMW following passage of Anti-eugenics bill by Legislature
12/9/2019 1:51:32 PMLiberty is defined in strange manner in court case
11/15/2019 7:26:14 PMLegal suit opposing Kentucky’s Heartbeat and Anti-eugenics Laws focused on status quo
11/1/2019 4:25:36 PMPlaintiff attorneys claim constitutional right for EMW’s patients
11/1/2019 3:57:31 PMWill discovery be allowed for the state of Kentucky to defend the legal case against the Heartbeat (SB9) and Anti-eugenics (HB5) laws?