Days before Gov. Matt Bevin put his signature on the legislation, the American Civil Liberties Union filed its challenge in anticipation he would do so. The new law bans abortion for women seeking to end their pregnancies because of the gender, race or disability of the fetus.
The measure took effect upon Bevin's signature, and his lawyers filed a response to the lawsuit aimed at blocking it. Kentucky lawmakers and GOP-led legislatures in several other states have pushed anti-abortion measures in hopes of getting a case before the U.S. Supreme Court to challenge the court's landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.
In asking a judge to block the new Kentucky law, the ACLU argued that it removes a woman's right to an abortion if the state "disapproves of her reason" for the procedure. The suit was filed on behalf of EMW Women's Surgical Center in Louisville, the only abortion clinic in Kentucky.
In reply, Bevin's legal team said: "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."
Bevin's lawyers called it a "perverse distortion" of the Roe v. Wade decision. The measure's supporters have said it would ban discrimination against fetuses because of race, gender or disability. Republican Rep. Melinda Gibbons Prunty, the bill's lead sponsor, has said abortions in such cases are "reminiscent of the social evil of eugenics," a belief that the human race can be improved through controlled breeding.
The new Kentucky law would require doctors performing abortions to certify in writing that, to their knowledge, their patient did not want to end her pregnancy because of concern over her unborn child's sex, race, color, national origin or disability. Doctors violating the measure would face felony prosecution and the loss of their medical license. Any clinic where a violation occurred would lose its license. Pregnant women would not face penalties.
The ACLU's challenge is part of a broader lawsuit also challenging another new Kentucky law that would mostly ban abortions in the state once a fetal heartbeat is detected. Soon after Bevin signed the heartbeat measure, a federal judge issued a temporary restraining order late last week to block its enforcement. It would be one of the country's most restrictive abortion measures. The ACLU is seeking a similar order against the new abortion law.
There was no immediate indication when the judge in the latest challenge might rule. A fetal heartbeat can be detected as early as six weeks into pregnancy, before many women know they're pregnant. ACLU attorneys said the heartbeat bill would prohibit 90 percent of abortions in Kentucky.
Anti-abortion measures in Kentucky and elsewhere come amid surging optimism among conservatives that the restrictions might have a chance of prevailing in the reconfigured Supreme Court that includes President Donald Trump's appointees, Neil Gorsuch and Brett Kavanaugh.
Federal judges struck down two Kentucky abortion laws in recent years, and the state appealed both rulings. A trial was held last year in a third lawsuit challenging a Kentucky law aimed at a common second-trimester procedure to end pregnancies. A federal judge has not yet ruled.
Attorneys for the ACLU and other groups are seeking $1.5 million from the state to cover attorneys' fees and other costs in one of the cases that led to an abortion law being struck down.