Kentucky Governor Signs Bill Banning Abortion on Basis of Race, Sex, Disability

By Zachary Stieber

Update: A federal judge halted the bill until a ruling on its constitutionality.

Republican Kentucky Gov. Matt Bevin signed a bill that bans getting abortions on the basis of sex, race, or disability of a fetus.

House Bill 5 was passed last week by the state Senate 32-4 after the House passed it 67-25 in late February. It was signed by Bevin into law on March 19. Since the bill carried an emergency clause, it took effect immediately.

It mandates that doctors performing abortions certify in writing that the patient didn’t want to get an abortion because of the unborn child’s sex, race, color, national origin, or disability.

If a doctor violated the law, they would face felony prosecution and the loss of their medical license; the prospective mothers would not face any penalties.

The American Civil Liberties Union (ACLU) filed a lawsuit against the bill on March 15, claiming that women have a right to have an abortion and that the bill infringes upon that right.

Kentucky Governor Matt Bevin speaks at the unveiling of a new $80 million Toyota engineering headquarters in Georgetown, Kentucky, on Oct. 30, 2017. (Bill Pugliano/Getty Images)

In a response filed in the U.S. District Court in Lousiville on Tuesday published by WYMT, Bevin’s office said the governor signed the law and said the legislation bans “eugenics-based abortions.”

“Imagine that a woman in Kentucky wants an abortion merely because she wants a girl rather than a boy. Or imagine that the woman wants an abortion because she does not want her child to be a certain race or nationality. Or imagine that the woman wants an abortion because her unborn child has a non-lethal disability like Down syndrome. Until now, abortions like these have been legal in the Commonwealth of Kentucky,” wrote Adam Meier, secretary of Health and Family Services in Kentucky, in the filing.

“EMW and its abortionists have responded with a novel claim: Women have a constitutional right to undergo race-based abortions, gender-based abortions, and disability-based abortions. In (the) plaintiffs’ view, somewhere in the Fourteenth Amendment’s penumbra lies a secret protection of eugenics.”

In this July 17, 2017 file photo, escort volunteers line up outside the EMW Women’s Surgical Center in Louisville, Ky. (AP Photo/Dylan Lovan, File)

Eugenics is the practice of attempting to improve the human population by blocking the births of people considered to be inferior, including, historically, certain races. Hitler was a strong proponent of eugenics.

Republican Rep. Melinda Gibbons Prunty, the bill’s lead sponsor, said after the state House passed the bill that abortions in such cases are “reminiscent of the social evil of eugenics.”

Kentucky has one abortion clinic—EMW Women’s Surgical Center in Louisville—which stopped doing abortions on Friday, reported the Louisville Courier-Journal, but resumed doing them on Saturday after U.S. District Judge David Hale temporarily blocked enforcement of another bill, Senate Bill 9, which banned abortions once a fetal heartbeat is detected.

In its filing, the ACLU wrote: “Plaintiffs will prevail on their claim that the Bans are unconstitutional under 46 years of Supreme Court precedent, beginning with “Roe v. Wade ,” 410 U.S. 113 (1973), which unequivocally holds that the State may not ban abortion before the point of fetal viability, regardless of the woman’s reason for her decision.”

In an illustration photo, a doctor performs an ultrasound on a pregnant woman during her visit to a gynecologist. (Jennifer Jacobs/AFP/Getty Images)

“The Bans will cause immediate irreparable harm to Plaintiffs and most of their patients by criminalizing abortion,” it added.

But Kentucky officials said that the plaintiffs were not able to establish House Bill 5 as unconstitutional.

“Roe protects a woman’s right at certain stages of pregnancy to choose whether to have a child, not to decide whether to have a child with attributes that the woman finds desirable,” Meier said.

“In light of their weak merits arguments, Plaintiffs also cannot prove irreparable harm, nor can they establish that the public interest favors temporarily enjoining a law overwhelmingly passed in bipartisan fashion by the People’s representatives. Plaintiffs also cannot overcome the fact that enjoining House Bill 5 will cause substantial harm to others—primarily unborn children but also the medical profession.”