1998 pro-life legislation
Nine months later, have Kentucky's new pro-life laws arrived as planned?
From Kentucky Citizen Digest, March, 1999

When Kentucky’s General Assembly passed three separate pro-life bills last session, it may have set a record according to officials at National Right to Life and the American Life League.  Neither group can recall any state legislature in the United States passing the number of pro-life bills that Kentucky did this past year.  The bills included a ban on partial-birth abortion, informed consent for women, and abortion clinic regulation.

Two of the bills met stiff opposition at critical junctures over their legislative journey, but eventually managed to sail through both houses by large margins.  Altogether, the three bills passed the House by a combined total of 239-42 and the Senate by 94-16.

But for two of the three bills, the battles are not over yet.

Informed Consent

Of the triad of Kentucky’s pro-life bills, informed consent attracted the harshest criticism from abortion supporters.  Then, after passage, Patton vetoed the bill only to have his defiance overridden by both the House (71-24) and the Senate (23-10).

The law mandates that women considering abortion be fully informed about the abortion procedure, the gestational age of the baby, and any risks associated with the surgery, including the findings of the related propensity to breast cancer.  The prospective mother must also be told of the father’s legal obligation for child support, adoption alternatives, and medical assistance availability if she decides to keep her child.  Previously, abortionists were not required by law to disclose any information.

Pro-life groups have questioned Patton’s sincerity in upholding the intent of the law from the beginning.  In early August an advisory work group was put together at the governor’s direction to decide what would be included in the information offered by abortion providers.  Pro-lifers became concerned when the group was predominately comprised of abortion supporters.  “Clearly the opponents of the legislation are well represented on the committee.  It is an outrage,” said Jane Chiles, executive director of the Catholic Conference of Kentucky.  “You just don’t do that and say you are working to uphold the law.”

Chiles is one of 22 members serving on the advisory group, yet only six clearly supported the legislation. This minority includes four legislators, the Catholic Conference and Kentucky Right to Life.  The rest is comprised by individuals from groups that had either a pro-abortion history or had lobbied against it.  Members adamantly opposing the law included two abortion-clinic directors, two members of Planned Parenthood, and one from the Religious Coalition for Reproductive Choice.

“The people chosen to implement this legislation should reflect the opinions of those who made the law,” said Bob Cetrulo of Northern Kentucky Right to Life.  “This obvious imbalance is certainly inconsistent with carrying out the legislative intent of this bill, passed by 75 percent of the Kentucky General Assembly.”

Dr. Rice Leach, commissioner of the Department for Public Health, is directing the advisory committee and will make final decisions on the contents of the two booklets.  “I don’t think anybody should have a concern about who is involved,” said Leach.  “I want to make sure those who have a strong opinion are involved at the start.”  However, no pregnancy care center, pro-life physician, or other pro-life organization per se besides Kentucky Right to Life were selected to serve on the committee.

A key aspect of the legislation is the 24-hour waiting period required for the abortion-minded woman to thoroughly contemplate her decision while considering the two booklets of information that are mandated by the law.  Within weeks of assembling the advisory group, Leach announced that one of two informational booklets would include a toll-free phone number for Planned Parenthood, while associated abortion risks, including the link to breast cancer, would be excluded.  In addition Leach announced plans to omit a photo of a 22-week old child in utero sucking its thumb. One pro-choice member of the group referred to the photo as commonly used in “anti-abortion propaganda.”

Margie Montgomery, the executive director of Kentucky Right to Life Association, was outraged, “There is nothing [in the photo] that is false, nothing that is biased.”  Montgomery also questioned the inclusion of Planned Parenthood’s phone number.  “Planned Parenthood is the largest abortion provider in the country.  They are against this legislation.  To give them free advertising in the state booklet is ridiculous.”

Supporters of informed consent have argued that the state is missing out on an opportunity for serving women with critical information they need.  According to Chiles, one booklet offered, entitled Available Resources for Pregnant Women, is totally inadequate.  “When it comes to listing private agencies and private practices, it follows the course of least resistance and simply defines what these might be.  For example, it simply states that private adoption agencies exist, rather than list the names and phone numbers of these agencies.  This is some of the most valuable information a woman can receive and if we are going to inform her of her resources, this is woefully inadequate as currently drafted,” says Chiles.

“Space was wasted in this booklet on silly definitions like ‘Hospitals provide emergency care and inpatient care for illnesses or childbirth.’  Rather than list Kentucky’s many crisis pregnancy centers in a way in which women could seek assistance, these agencies were given a simple 34-word general definition and no listing whatsoever.”

While many are disappointed with the apparent outcome of HB 85, the bill’s primary author, Rep. Katie Stine, promised to introduce another bill next session to address the shortcomings and more clearly spell out the information that must be provided in writing.  And now that she has secured a senator’s office through Nov. 3 election process, her influence has multiplied.

With Stine’s assurances, both Montgomery and Chiles are optimistic about their prospects for improving the law next Assembly session.  They are also encouraged that in the meantime more women considering abortion will gain information that they would not have had before the law.  But until women gain all the available information, including full disclosure regarding medical risks, Montgomery maintains they will be hard-pressed to make an informed decision.  “We fully inform patients on every other medical procedure.  Why not his one?”

Partial-Birth Abortion Ban

Last April at the close of the session, Kentucky became the 28th state to ban what is known as “partial-birth abortion.”  The bill prohibits what many have called a “heinous and barbaric procedure,” where the abortionist delivers all but the baby’s head and then inserts a sharp object into the base of the skull to kill the child and then deliver a dead “fetus.”  The revelation of the details of this practice led very few legislators to vote against the bill, which passed the Senate 34-2 and the House 80-13.

After passage, Planned Parenthood and the American Civil Liberties Union filed suit against the law before the ban was scheduled to go into effect. Then in November, U.S. District Judge John G. Heyburn II permanently blocked the ban, alleging that it would prohibit other abortion procedures. He called the law “unconstitutional,” “overly broad,” and insisted in his opinion that this type of abortion did not take place in Kentucky.

“The words [of the ban] point to procedures in Kentucky which are often necessary to guarantee a woman’s right to lawful abortion of a nonviable fetus,” said Heyburn.  “The words point to the rights women might lawfully exercise.   By doing so, the words and the Act they comprise create an undue burden upon the women who seek only to exercise their rights.”

Citizens throughout the state adamantly disagreed with Heyburn’s assessment.  Even a member of the American Medical Association’s (AMA) legislative council called the procedure “basically repulsive [and not a] medical technique.”  The AMA unanimously endorsed the ban proposed at the federal level last year.  According to Montgomery “this law reflects the thinking of most Americans.”

As the national debate has progressed over the past two years, startling evidence indicates that partial-birth abortions are performed far more routinely than originally believed.  In addition, information now available suggests that up to 80 percent are done on healthy and viable fetuses for purely elective reasons.

Up to now the public has been kept in the dark as to whether partial-birth abortions are performed in Kentucky.  But “even if they didn’t, it is a procedure that we should not welcome in our state,” says Montgomery.

Abortion supporters sensed a victory in the Federal Court’s ruling and were bolstered by the fact that Kentucky’s attorney general, slated to defend the law, openly supports abortion.  But to their surprise, Attorney General Ben Chandler has decided to defend the ban.

“I think there is heavy, heavy evidence that the people of the Commonwealth of Kentucky are interested in seeing this law go through,” said Chandler.  “So in my mind, unless the legislation was clearly, absolutely unconstitutional, I should have defended it and that’s what I decided to do.”

In a twist of fate, Chandler’s decision to defend the law drew criticism from abortion proponents, his former supporters, while he received praise from the pro-life community even though many are aware of possible political motives as it is well-known that he aspires to the office of governor of this pro-life state.

Despite his pro-choice position, Chandler appears fully committed to defending the law unsparingly.  “We have been favorably impressed with the quality of work and the amount of energy that has gone into the defense of the statute,” says Chiles.  Whatever the attorney general’s efforts may be, he will have his work cut out for him if he is to be successful.

Of the 28 states that have banned the procedure, only seven currently have the law in force.  The others have been blocked in part or whole by federal courts.  Chandler feels confident that the state can win the appeal.

Abortion Clinic Regulation

For the first time in 25 years, Kentucky’s abortion clinics will face the same regulations as other medical facilities in the state. The new law, passed last session, requires abortion clinics to be licensed by the Cabinet for Human Resources. The legislation calls for the Cabinet to devise administrative regulations that provide a framework for licensing abortion facilities, including “ patient care standards, safety standards, minimum operation standards, minimum standards for training, required licenses for medical staff personnel, and minimum standards for maintaining patient records.”

Efforts to regulate abortion facilities in Kentucky have been initiated each year since the mid-‘80s when complaints about unsanitary conditions were first raised by women seeking abortions.  In 1985, the Cabinet investigated one abortion facility in Louisville and found unsanitary conditions, poor infection control procedures, and the reuse of disposable medical equipment.  Patients recovering from abortions were also left unattended while recovering.

The new administrative regulations for abortion clinics will go into effect March 1, 1999.  Thereafter, abortionists must file monthly reports with the state disclosing information regarding each abortion performed that month.  According to Chiles the proposed regulation will accomplish the long-overdue oversight of these facilities.
 

Key Family Foundation Contacts: Kent Ostrander, Executive Director Martin Cothran, Senior Associate Policy Analyst