A federal appeals court struck down a Kentucky law Friday that protects unborn babies from dismemberment abortions.
The 2018 law prohibits abortions “that will result in the bodily dismemberment, crushing or human vivisection of the unborn child” while he or she is still alive. These gruesome methods commonly are used in D&E abortions in the second trimester.
Last year, U.S. District Judge Joseph H. McKinley Jr., a nominee of pro-abortion President Bill Clinton, argued that the law creates an “undue burden” for women seeking second-trimester abortions.
Today, the 6th U.S. Circuit Court of Appeals affirmed that ruling.
“In nearly every state, plaintiffs have challenged those laws as unduly burdening the right to elect abortion before viability, as plaintiffs have done here,” the majority wrote in the opinion. “And in every challenge brought to date, the court has enjoined the law, finding that it indeed unduly burdens that right,” the justices wrote in a 2-1 ruling.
The American Civil Liberties Union sued on behalf of EMW Women’s Surgical Center, the only abortion business in Kentucky, and a judge temporarily blocked the law in 2018 before Judge McKinley issued the injunction.
If allowed to go into effect, the law could save hundreds of unborn babies from dismemberment abortion deaths every year. The Independent reports 537 D&E abortions occurred in Kentucky in 2016, according to state health data.
McKinley said women have a constitutionally-protected right to an abortion before viability, and the dismemberment ban would create a “substantial obstacle” for Kentucky women seeking second-trimester abortions.
“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.
However, the governor’s office expressed hope that the law ultimately will be upheld.
“We profoundly disagree with the court’s decision and will take this case all the way to the Supreme Court, if necessary, to protect unborn children from being dismembered limb by limb while still alive,” said Elizabeth Goss Kuhn, a spokeswoman for Bevin, in a statement.
Lawyers with the ACLU praised the ruling, saying it “affirms that health, not politics, will guide important medical decisions about pregnancy.”
State lawyers have argued that the law stops a “brutal and violent” procedure against a living human being, while lawyers for the pro-abortion group have claimed the law prohibits the “safest and most common” second-trimester abortion method.
“This gruesome procedure, which rips apart a live, unborn child, is antithetical to everything that we stand for as a civilized society,” said Steve Pitt, general counsel for the state, previously. “H.B. 454 recognizes the dignity of human life and provides an alternative method for performing dilation and evacuation (D&E) abortions that does not subject the unborn to the torture and agony of being dismembered while alive.”
Dismemberment abortion is a procedure in which the abortionist first dilates the woman’s cervix and then uses steel instruments to dismember and extract the baby from the uterus. The procedure is usually performed between 11 and 24 weeks LMP, when the baby is somewhere between the size of a lemon and a cantaloupe.
By 11 weeks, unborn babies already have fingers and toes, heartbeats and detectable brain waves. They can respond to touch, yawn, suck their thumbs and even show signs of being right or left handed.
Other states with dismemberment abortion laws include Arkansas, Alabama, Indiana, Kansas, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, Texas and West Virginia. The abortion industry is challenging many of them in court.
The Dismemberment Abortion Ban is built in part on the precedent set in the U.S. Supreme Court case Gonzales v. Carhart (2007) which upheld the federal Partial-Birth Abortion Ban and scaled back the scope of Roe v. Wade. In the court’s opinion, former Justice Anthony Kennedy, a swing vote on abortion, described what occurs in a D&E abortion: “[F]riction causes the fetus to tear apart. For example, a leg might be ripped off the fetus… No one would dispute that for many, D&E is a procedure itself laden with the power to devalue human life.”
“Banning the brutal dismemberment abortion technique is among NRLC’s highest legislative priorities,” said Ingrid Duran, director of state legislation at NRLC.
“Dismemberment abortion, like partial-birth abortion is a brutal procedure which literally rips a living child apart limb from limb,” Duran added. “In Carhart, the Supreme Court said, ‘No one would dispute that, for many, D & E is a procedure itself laden with the power to devalue human life.’”