By Dave Andrusko
When then-Gov. Matt Bevin signed House Bill 454 into law in 2018, Kentucky became the ninth state to ban the hideous practice of dismembering living unborn babies. Predictably, the ACLU quickly challenged HB454, and on May 10, 2019, U.S. District Judge Joseph McKinley struck the law down as unconstitutional.
Gov. Bevin initiated the appeal but when pro-abortion Democrat Andy Beshear became governor, new Attorney General Daniel Cameron took over the case. On Wednesday a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati heard oral arguments from the ACLU and State Deputy Solicitor General Matthew Kuhn.
The three judges are Eric Clay, an appointee of President Bill Clinton, John Bush, appointed by President Donald Trump, and Gilbert Merritt, appointed by President Jimmy Carter.
“We, Kentucky, can change how abortion procedures are performed to make them more humane,” Kuhn said. He told the court that the law does not ban dismemberment abortions, but only requires fetal demise before the child is torn to pieces.
Kuhn said that the state of Ohio already has a similar law on the books, adding “If doctors in Ohio are already doing it, why can’t doctors in Kentucky do it?”
According to Deborah Yetter of the Louisville Journal-Courier, judges Clay and Bush were the active questioners. She also wrote of Judge Bush that he “is the author of a 6th Circuit decision upholding a 2017 Kentucky law requiring doctors who perform abortions to first complete an ultrasound and attempt to show and describe the image to the patient, as well as to play an audible heartbeat of the fetus.”
To be more specific, Judge Bush authored the majority opinion which found that H.B. 2 “does not violate a doctor’s right to free speech under the First Amendment.”
Under Roe v. Wade, 410 a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient. This appeal principally concerns whether those requirements violate the doctor’s First Amendment rights. …
Because H.B. 2, like the statute in Casey [the 1992 Supreme Court case], requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment.
WDRB News reported,” A decision could take months, but Cameron said he will appeal to the U.S. Supreme Court if necessary.”