By Dave Andrusko
As we wrote back in January, although the line of questioning does not always indicated what a judge is thinking, it seemed clear that two of three judges of a 6th U.S. Circuit Court of Appeals panel were going to uphold a permanent injunction granted by U.S. District Judge Joseph McKinley, who found House Bill 454 unconstitutional last year.
Sure enough, today Judges Eric Clay, an appointee of Bill Clinton, and Senior U.S. Circuit Judge Gilbert Merritt Jr., a Jimmy Carter appointee, concluded that it was “unduly burdening the right to elect abortion” to require fetal demise before the baby is torn apart in a dismemberment abortion.
John Bush, appointed by President Donald Trump, offered a brilliant 10-page dissent in which he systematically dismantled the majority opinion.
The suit was brought by Louisville’s EMW Clinic, which challenged the law right after it was signed by former Gov. Matt Bevin. As NRL News Today wrote previously, the parties agreed to suspend enforcement of HB 454 pending the outcome of the federal court trial.
Deputy Solicitor General Matthew Kuhn told the judges in January,
“We, Kentucky, can change how abortion procedures are performed to make them more humane,” adding that the state of Ohio already has a similar law on the books. “If doctors in Ohio are already doing it, why can’t doctors in Kentucky do it?”
Clay was unpersuaded, arguing fetal demise has no benefit for the mother and poses potential dangers to her.
Writing for Courthouse News, Kevin Koeninger did a very fair job summarizing Judge Bush’s dissent.
In the dissent, Bush said it was odd that “not a single person whose constitutional rights are directly impacted by the law is a party to the case,” and argued the case should have been dismissed for lack of standing.
While physicians and abortion providers are generally granted third-party standing to sue on behalf of their patients, Bush was skeptical that the providers in this case could satisfy the “closeness requirement” of such a position.
Bush cited expert testimony from the trial that showed a large percentage of women seeking second trimester abortions prefer to have a fetal demise procedure before the abortion, and said this created a conflict of interest between the abortion providers and the patients they represented in the suit.
“At the very least,” he wrote, “the proof at trial reflects a potential conflict between the interests of the EMW physicians and some, perhaps the majority, of the patients that they seek to represent. All of the evidence presented at trial about patient preference circumstantially supports a finding that at least some – and potentially, most – of patients seen by plaintiffs would favor the effect of H.B. 454 because those patients would want fetal demise before a D&E.”
He added, “The statute essentially requires that abortion providers at EMW receive the necessary training, which in turn would allow those women who prefer fetal demise to obtain it before the D&E procedure is performed.”
To amplify a couple of points…
*There is the contention that learning to administer one of the techniques that ensure the poor baby has passed before ripped apart is practically brain-surgery. It’s not, as expert testimony at the trial illustrated. Moreover, as Judge Bush noted, “Dr. Davis–whom EMW called as an expert but did not hire as one of their physicians–acknowledged that an intrafetal or intraamniotic digoxin injection is within the standard of care for an OB/GYN to perform; indeed, she herself had performed such injections. Likewise, the National Abortion Federation states in its 2018 Clinical Policy Guidelines for Abortion Care that an intraamniotic or intrafetal digoxin injection is a permissible option for accomplishing fetal death before a D&E procedure.”
*Judge Bush wrote that “The reasons why a woman would make the choice for fetal demise” prior to an abortion” were “demonstrated at trial. Dr. Anthony Levantino testified that in a D&E procedure, the “[f]etus dies from dismemberment from literally having arms and legs pulled off”; “[it] bleed[s] to death.”Another physician, Dr. David Berry, described a D&E procedure in which the doctor “pulled out a spine and some mangled ribs and the heart was actually still beating.” It is not difficult to understand why a majority of women would want the heart to stop beating before the fetus undergoes such an ordeal.”