The June U.S. Supreme Court decision clouds the fate of Kentucky’s partial-birth abortion ban passed in 1998
Partial-birth abortion ban ruled unconstitutional
From, The Kentucky Citizen Digest, January/February, 2001.

On June 27th of this year, the United States Supreme Court ruled by a narrow margin in Carahart vs. Nebraska,  that a partial-birth abortion ban passed by the Nebraska legislature is unconstitutional.

The abortion procedure under scrutiny is referred to by the medical community as “D&E” or  more specifically, dilation and extraction.  As many people are aware, a partial-birth abortion takes place in the latter stages of fetal development, when a live fetus is partially delivered and is then  killed prior to completing the delivery.

Nebraska is not the only state to have passed this type of ban, 30 other states have endorsed similar legislation.  Kentucky is one of those 30, who rigorously fought to ban this gruesome method of abortion.

In 1998, this issue arose before the General Assembly along with other abortion-related bills such as informed consent and clinic regulation.  The ban swept through the Senate 34-2 and the House 80-13.  Nevertheless, it appears that neither the decision of the legislature nor the “will of the people” are the guiding  forces on this matter.

The ban came under attack nearly immediately following its passage in 1998.  In the U.S. District Court case Eubanks vs. Stengal, the ban was deemed unconstitutional by Judge John G. Heyburn III.  Although the decisions is pending possible appeal in the 6th U.S. Circuit Court, the U.S. Supreme Court’s ruling regarding Nebraska does not encourage pro-lifers that an appeal will reinstate Kentucky’s partial-birth ban, though it does not necessarily deem Kentucky’s law unconstitutional.

Most abortion bans that have been struck down in the judicial system list one of two problems.  In some cases, the language of particular state’s ban has been written in a vague manner, which could be viewed by doctors as a ban against other forms of abortion, preventing those in this medical field to discontinue their services.  These accusations of “sweeping language” are often seen by pro-lifers as inaccurate and extreme efforts to further the pro-choice agenda.

The other reasoning utilized by courts across the country when deeming the ban unconstitutional is that the legislation needs to include an exception for legal use of the procedure if it is deemed the safest abortion method available to the mother; otherwise, the ban unnecessarily endangers the life of mother.

In a written concurrence to the majority opinion of the Supreme Court, Justice Sandra Day O’Conner implied that similar legislation which also included this exception would likely be seen as constitutional and thus beyond the reach of the Court.

If it is the case that Kentucky’s current ruling against the partial birth ban is not overruled, one can only hope that the General Assembly will not be discouraged and will press on, possibly utilizing O’Conner’s suggestion.
 

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