Summary judgment is demanded by Plaintiffs based solely on viability issue

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.