CINCINNATI, Ohio — The Sixth Circuit of Court of Appeals has upheld a lower court ruling striking down a Kentucky law that prohibited abortionists from dismembering unborn children alive in the womb, ruling that the restriction “imposes substantial burdens on the right to choose” because it amounts to a ban on second trimester abortions. The State had argued in court that abortionists could still perform dilation and evacuation (D&E) abortions if other methods to kill the child were used first, such as fatal injections or an umbilical cord transection.
“Altogether, H.B. 454 imposes substantial burdens on the right to choose,” wrote Judge Eric Clay, nominated to the bench by then-President Bill Clinton. “Because none of the fetal-demise procedures proposed by the secretary [of the Cabinet for Health and Family Services] provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E.”
He was joined in the opinion by Judge Gilbert Merritt, nominated by then-President Jimmy Carter. Judge John Bush, nominated to the bench by President Donald Trump, dissented.
“Because the burdens imposed by H.B. 454 dramatically outweigh any benefit it provides, H.B. 454 unduly burdens an individual’s right to elect to have an abortion prior to viability,” Clay concluded. “Thus, H.B. 454 violates the Fourteenth Amendment.”
The last remaining abortion facility in Kentucky, EMW Women’s Surgical Center, had sued then-Secretary Adam Meier in 2018 after the stated House Bill 454 was signed into law by then-Gov. Matt Bevin. It argued that the law basically prohibits abortions in the second trimester — three months/13 weeks gestation.
The legislation states that “[n]o person shall intentionally perform or induce or attempt to perform or induce an abortion on a pregnant woman: (a) that will result in the bodily dismemberment, crushing, or human vivisection of the unborn child and (b) when the probable post-fertilization age of the unborn child is eleven (11) weeks or greater, except in the case of a medical emergency.”
In May 2019, Judge Joseph McKinley Jr. ruled in favor of the abortion facility, remarking that “the Act will operate as a substantial obstacle to a woman’s right to an abortion before the fetus reached viability — a violation of a woman’s Fourteenth Amendment rights to privacy and bodily integrity.”
The State appealed, and on Tuesday, the Sixth Circuit Court of Appeals ruled on Tuesday that while Kentucky “might justifiably regulate abortion[,] … no Commonwealth interest may justify ‘placing a substantial obstacle in the path of a woman seeking an abortion’ prior to viability.”
It noted that while the text of the law seems to prohibit D&E abortions altogether, Acting Secretary Eric Friedlander argued that abortionists may still perform D&E abortions if they first stop the baby’s heart from beating, such as via a digoxin injection, potassium chloride injection or an umbilical cord transection.
“The Secretary asserts that the Commonwealth may constitutionally require individuals to undergo these procedures because they are ‘reasonable alternative[s]’ to a standard D&E,” Clay outlined.
But the court argued that the options were not alternatives to D&E but an additional procedure, which also poses additional risks to the mother. It additionally stated that there is no benefit to killing the child another way first because the D&E is performed anyway, and the district court had claimed that babies cannot feel pain at that stage of development.
“The most obvious potential benefit to separating fetal tissue post-demise rather than pre-demise is that it eliminates any possibility of fetal pain. But the district court permissibly found that it is impossible for a fetus to feel pain during the period in which D&Es are administered, and so H.B. 454 provides no benefit in that regard,” Clay wrote.
“H.B. 454 unduly burdens the right to choose, in violation of the Fourteenth Amendment,” he concluded. “Should H.B. 454 be allowed to go into effect, it would cause Plaintiffs’ patients to suffer ‘continuing irreparable injury’ for which there is no adequate remedy at law.”
However, as previously reported, Christians throughout history have decried abortion as murder, no matter the method or reason. The late preacher Lee Roy Shelton wrote in “The Crimes of Our Times” in a section on abortion:
“When killing anyone, the murderer is guilty of taking the life which God has given, and therefore he is ‘playing God’ by saying when and how a man should die. But God doesn’t look lightly upon those who try to take His place.”
“God has given us the Sixth Commandment as a fence about human life to preserve it, for it is sacred to Him. Yes, the Bible declares human life to be sacred. It is a divine creation, mysterious and magnificent in its beginning and possibility, utterly beyond the control or comprehension of any human being. It is never to be taken away at the will of anyone, for how can they tell the full meaning of that life and what it will bring forth?”
“The revelation of God made to man out of His blessed Word proves that He has purposes for every individual and for the [human] race, stretching far beyond the present moment or manifestation; and to terminate a single life is to set yourselves up as wiser and superior to God. The immensity of the issues of death is so great that there can be no sin against humanity, and accordingly, against God, greater than that of taking a human life.”
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