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Federal judge hands abortion rights advocates a big win in Kentucky

Conservative lawmakers have crafted a series of anti-abortion laws in the South and Midwest this year.

Abortion rights advocates worry Brett Kavanaugh could help overturn Roe v. Wade. CREDIT: ANDREW CABALLERO-REYNOLDS/AFP/Getty Images
Abortion rights advocates worry Brett Kavanaugh could help overturn Roe v. Wade. CREDIT: ANDREW CABALLERO-REYNOLDS/AFP/Getty Images

A federal judge on Friday struck down a Kentucky law limiting abortion, handing a win to reproductive rights advocates after major setbacks this week in both Georgia and Alabama.

U.S. District Judge Joseph McKinley ruled on May 10 that a 2018 law passed in Kentucky banning an abortion procedure called dilation and evacuation (D&E) is unconstitutional, in a victory for the ACLU which sued on behalf of the state’s only remaining abortion clinic. McKinley wrote in his decision that the law posed a “substantial obstacle” to abortion access, in violation of the 14th Amendment and of U.S. law.

D&E is a common abortion method, typically employed during the second trimester, and was used in more than 15% of roughly 3,300 abortions in Kentucky in 2016. Banning D&E, McKinley said, would place an “undue burden” on people seeking to terminate their pregnancies.

“If the Act goes into effect, standard D&E abortions will no longer be performed in the Commonwealth due to ethical and legal concerns regarding compliance with the law,” the judge wrote.

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In a statement, ACLU attorney Alexa Kolbi-Molinas cheered the decision as a victory, one that “affirms that health, not politics, will guide important medical decisions about pregnancy.” Laws like the one in Kentucky, she said, are “part of an orchestrated national strategy by anti-abortion politicians to push abortion out of reach entirely.”

The ruling struck a blow to Gov. Matt Bevin (R), who has pledged to fight the decision. In a statement, a spokesperson for the governor said that Kentucky “will take this case all the way to the Supreme Court, if necessary.”

McKinley’s decision comes at the end of a grim week for abortion rights advocates in the South.

On Tuesday, Gov. Brian Kemp (R-GA) signed into law a near-total abortion ban that would outlaw terminating a pregnancy as early as six weeks, a time at which many people do not even know they are pregnant.

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The so-called “fetal heartbeat” ban recognizes an embryo as a “natural person” and outlaws abortion once a cardiac activity is detected in the fetus. Reproductive rights advocates have repeatedly slammed the ban as unconstitutional, as have justice organizations. Meanwhile, companies in film industry are withdrawing their business from the state in response, in a move that could seriously hurt Georgia’s economy — the state is one of the top filming locations worldwide.

Another heated fight over abortion also broke out this week in Alabama. On Thursday, the Alabama Senate delayed a vote over what would likely be the nation’s strictest abortion law. Under the bill, abortion would be outlawed in all cases excluding life-or-death circumstances. Some lawmakers erupted in anger on the state Senate floor, however, when amendments allowing for rape and incest exceptions were shot down. In the subsequent chaos, the legislative body postponed the vote until next week.

The onslaught of anti-abortion legislation reflects a broader national trend. Abortion rights advocates argue that opponents are hoping to take advantage of the new conservative majority on the Supreme Court following the appointments of Neil Gorsuch and Brett Kavanaugh by President Donald Trump. If an abortion law were to reach the court, reproductive rights supporters worry the bench could use it as a opportunity to overturn Roe v. Wade.

But reproductive health experts cautioned the public to take care when discussing Georgia’s ban, as well as similar legislation in states like Ohio that haven’t taken effect yet. Georgia’s law isn’t set to go into effect until January 2020, by which point many legal challenges will likely have played out. Abortion providers say patients are terrified of having their appointments canceled, but that at present the clinics remain open and providing their usual services.

Some abortion rights organizations, meanwhile, say they intend to target any Republican who supported Georgia’s abortion ban, homing in on them in 2020. NARAL Pro-Choice Georgia and Planned Parenthood Southeast Advocates say they will spend hundreds of thousands of dollars in an effort to mobilize activists and unseat the ban’s backers, in a rare effort focused on lower-level legislative state races.