Judge cautions lawyers to watch language in abortion case

Posted at 10:15 AM, Mar 26, 2019
and last updated 2019-03-26 10:16:29-04

LOUISVILLE, Ky. (AP) — A federal judge in Kentucky has cautioned lawyers to watch their language in their bitter legal feud over abortion — this time over a lawsuit challenging two new state laws aimed at putting more restrictions on the procedure.

U.S. District Judge David J. Hale set a Friday hearing on a motion for a preliminary injunction requested by attorneys for EMW Women's Surgical Center in Louisville — the only abortion clinic in Kentucky. Attorneys for Republican Gov. Matt Bevin are defending the laws passed recently by the GOP-dominated legislature and signed by the governor. The clinic's attorneys argue both laws are unconstitutional.

In setting the hearing, Hale cautioned lawyers to "avoid intemperate language" in their pre-hearing documents.

The judge didn't state any reason for urging attorneys to watch their language.

The lawsuit expanded the state's legal wrangling with the American Civil Liberties Union over abortion laws.

The suit challenges laws to ban most abortions once a fetal heartbeat is detected, and to ban the procedure for women seeking to end pregnancies due to the gender, race or disability of the fetus. The judge temporarily blocked enforcement of both measures.

In defending the law to ban gender-, race- or disability-based abortions, attorneys for Bevin and the state's health and family services secretary said in an earlier court filing that plaintiffs "benignly" labeled it as a "reason ban."

"In actuality, it bans something far more sinister: eugenics-based abortions," the state's attorneys said.

Eugenics is a belief that the human race can be improved through controlled breeding.

In the same filing, the state's attorneys said: "Doctors must be viewed as healers, not as enablers and practitioners of eugenics and, more specifically, of overt racial discrimination, gender discrimination, and disability discrimination."

The new 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 argues it removes a woman's right to an abortion if the state "disapproves of her reason" for the procedure.

Meanwhile, ACLU attorneys have said the heartbeat bill would prohibit 90 percent of abortions in Kentucky. A fetal heartbeat can be detected as early as six weeks into pregnancy, before many women know they're pregnant.

The ACLU's filings focused mostly on a woman's constitutional right to abortion.

In asking the judge to block the two laws, the ACLU said both are "unquestionably unconstitutional under 46 years of Supreme Court precedent," beginning with the court's landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.

"The decision to terminate a pregnancy for any reason is motivated by a combination of diverse, complex and interrelated factors that are intimately related to the individual woman's values and beliefs, culture and religion, health status and reproductive history, familial situation, and resources and economic stability," ACLU attorneys said in the filing.

"The bans would prevent all of these women from obtaining a pre-viable abortion in the commonwealth," they added.

Kentucky lawmakers and GOP-led legislatures in several other states have pushed anti-abortion measures in hopes of getting a case before the Supreme Court to challenge the Roe v. Wade ruling. The push comes amid rising optimism among conservatives that the restrictions might prevail in the reconfigured Supreme Court that includes President Donald Trump's appointees, Neil Gorsuch and Brett Kavanaugh.

The ACLU has filed four separate lawsuits challenging a series of abortion laws in Kentucky that mostly passed after Republicans took total control of the state legislature in 2017.

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.