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Beshear Will Defend Abortion Ultrasound Law, Won’t Defend 20-Week Ban

J. Tyler Franklin/WFPL News, cropped

Update: Gov. Matt Bevin's response added.  

Attorney General Andy Beshear says he will not defend the state if it is sued over a law passed by the state legislature last week banning abortions after 20 weeks of pregnancy.

But Beshear, the Kentucky’s top law enforcement official, said he would defend the state in a lawsuit against another new law requiring abortion doctors to narrate an ultrasound as they perform the procedure on women seeking abortions.

 

Both laws went into effect over the weekend after Gov. Matt Bevin signed the legislation during a speedy first-week of the newly Republican-led General Assembly.

Beshear said his office wouldn’t represent the state on the 20-week ban because it is “clearly unconstitutional” and that identical laws have been struck down in other jurisdictions.

In a statement, Beshear said it was his duty to enforce the Constitution and that he would defend, HB 2.

“It is also my duty to defend laws where the constitutionality is questionable and finality is needed,” he said. “Adhering to these duties is why, after close review, my office will defend the agencies sued over House Bill 2 that seek our representation.”

The ACLU of Kentucky and EMW Women’s Clinic, the last abortion provider in Kentucky, filed a lawsuit against the state Monday, saying that the new law violated women’s right to privacy and the free speech rights of doctors and patients.

In 2014, a federal appeals court struck down a similar law in North Carolina and the U.S. Supreme Court refused to take up an appeal of the case. A federal court also struck down an abortion ultrasound law in Idaho.

“Whether a mandatory ultrasound and explanation is constitutional has split the two federal appellate circuits that have directly addressed it,” Beshear said. “The Sixth Circuit that includes Kentucky, has not rendered a decision. I will advise that this matter has risks and potential costs, which resulted in over $1 million in legal fees to North Carolina, which lost its defense.”

Though no suit has yet been filed against the 20-week abortion ban, Beshear’s announcement that he wouldn’t defend the law hearkens back to his predecessor Jack Conway, who refused to defend the state’s constitutional ban on same-sex marriage in 2014.

Former Gov. Steve Beshear, the current attorney general’s father, instead hired an outside attorney to defend the gay marriage ban. The case was eventually appealed to the U.S. Supreme Court, where it was struck down in June 2015.

Response from Governor Matt Bevin:

“Attorney General Andy Beshear is once again refusing to do his job. Even though he is obligated by law to do so, AG Beshear refuses to defend the 20-week abortion ban, a bill that won the support of nearly 80 percent of the General Assembly, including 21 Democrats. AG Beshear would rather pander to his liberal, pro-abortion base than defend the law of Kentucky. I will, therefore, continue doing it for him by defending these pro-life bills. The citizens of Kentucky demand and deserve no less.”

Ryland Barton is the Managing Editor for Collaboratives for Kentucky Public Radio, a group of public radio stations including WKMS, WFPL in Louisville, WEKU in Richmond and WKYU in Bowling Green. A native of Lexington, Ryland most recently served as the Capitol Reporter for Kentucky Public Radio. He has covered politics and state government for NPR member stations KWBU in Waco and KUT in Austin.
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