Running for governor in a socially conservative state, Kentucky’s Democratic attorney general sent a letter to legislative leaders Thursday declaring a proposed bill to ban abortion after the detection of a fetal heartbeat is unconstitutional.
Andy Beshear said an effort to challenge the U.S. Supreme Court on the issue would be a waste of taxpayer money, as the nation’s high court has ruled at least eight times that Congress and state governments cannot ban abortions before viability. He noted courts have ruled viability is generally around 24 weeks, stressing that is a medical determination, not a legislative one. He said doctors can detect a fetal heartbeat as early as six weeks into the pregnancy.
“As constitutional officers, we took a mandatory oath to uphold the Constitution,” Beshear wrote, adding the U.S. Supreme Court is the final word on what the Constitution means. “The Supreme Court has spoken on this issue. This means that when the state is sued over this law, the Commonwealth will lose, and will owe hundreds of thousands of dollars in fees.”
Senate Bill 9 is one of several abortion proposals from conservative states meant to challenge the landmark 1973 Roe v. Wade decision that established a woman’s legal right to terminate a pregnancy. It would require anyone seeking an abortion to first determine if a fetal heartbeat is detectable. If it is, the abortion would be banned. Republican state Sen. Matt Castlen, the bill’s primary sponsor, dismissed Beshear’s warning.
“Every piece of legislation is subject to legal challenge, but I will continue to fight for the rights of the unborn here in the Commonwealth,” Castlen said.
The American Civil Liberties Union has threatened to challenge the fetal heartbeat measure if it becomes law.
Kentucky is embroiled in three abortion-related lawsuits. Two other abortion-related laws in Kentucky have already been struck down by the courts, but GOP Gov. Matt Bevin has appealed in both cases.
One of those laws, enacted in 2017, had required doctors to perform ultrasounds and show and describe the ultrasound images to pregnant women, who could avert their eyes.
Another legal challenge arose over Bevin’s interpretation of a separate law — passed about two decades ago — that required any abortion clinic in Kentucky to have written agreements with a hospital and ambulance service in case of medical emergencies. The Bevin administration’s actions had threatened the state’s last abortion clinic, EMW Women’s Surgical Center in Louisville, but it remains open. A federal judge ruled last year that the law violates constitutionally protected due process rights.
In a third case, a trial was held late last year on another Kentucky law that abortion-rights advocates said would unconstitutionally restrict a common second-trimester procedure to end pregnancies. That law remains suspended pending a ruling by a federal judge.
Kentucky Senate Majority Leader Damon Thayer said recently he hopes the state’s aggressive anti-abortion laws eventually lead the increasingly conservative U.S. Supreme Court to ban abortion.
Beshear is one of four Democratic candidates running for governor in 2019. Bevin is seeking a second term and has often criticized Beshear for his stance on abortion. Thursday, Bevin’s spokesman Woody Maglinger said the attorney general’s letter shows “rather than defending Kentucky’s laws and interests, he would rather attack them.”
“It underscores how dramatically out of step he is with the values of everyday Kentuckians,” Maglinger said.
Schreiner reported from Louisville.