‘Commonweatrn oF Kentucky OFFice OF THE ATTORNEY GENERAL Anoy BesHear Carmo, BuLona, Sure 118 TORNEY GENERAL 700 Caroe Avenue Arroaney Ge FranxrorT, Kentucky 40601 (602) 696-5300 January 31, 2019 Fax: (602) 564-2894 Sent via E-Mail Hon. Robert Stivers IT Hon. David Osborne Senate President Speaker of the House 702 Capitol Avenue 702. Capitol Avenue Capitol Annex, Room 236 Capitol Annex, Room 332 Frankfort, KY 40601 Frankfort, KY 40601 Robert.Stivers@lraky,gov David Osborne@lrcky.gov Dear President Stivers and Speaker Osborne: L write to inform you that Senate Bill 9 (“SB 9”) is unconstitutional, The Supreme Court of the United States has uniformly held — in no fewer than eight separate decisions ~ that neither Congress nor a State legislature can ban abortions before viability. Courts have held that viability generally occurs around 24 weeks, although the Supreme Court has explained that viability must be a medical — and not a legislative — decision, which must be made on a case-by-case basis. Because a doctor can usually detect a heartbeat at around six weeks, the bill’s blanket prohibition violates every applicable United States Supreme Court and Federal Circuit Court case on the topic. Indeed, the Tenth Circuit held that bans like SB 9 are so clearly unconstitutional that where a legislature passes such a law, “the State ma{kes] a deliberate decision to disregard controlling Supreme Court precedent.” Jane L. v, Bangerter, 102 F.3d 1112, 1118 (10th Cir. 1996), cert. denied by Leavitt v. Jane L., 117 8.Ct. 2453 (1997). ‘The Supreme Court has held that a woman has a constitutional right under the Fourteenth Amendment to obtain an abortion before viability without undue interference from the State. See Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Gonzales v. Carhart, 550 U.S. 124, 146 (2007); Colautti v. Franklin, 439 U.S. 379 (1979); Stenberg v. Carhart, 530 U.S. 914, 921 (2000). As early as Roe v. Wade, 410 U.S. 113, 164-65 (1973), the Supreme Court established that viability is the critical point, which subsequent decisions have reaffirmed. See, e.g., Casey, 505 U.S. at 860 (stating that “Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has since Roe was decided”),! ' The text of SB 9 seems to assume that Roe will soon be overturned, SB 9, § 11. That assumption has no basis in law, and it ignores that the two most recent nominees to the United States Supreme Court have stated under oath that they believe Roe isthe settled law of the land, See, e.g, Matt Ford, “Gorsuch: Roe v. Wade Is the ‘Law of the An Equal Onportunsry Evrcover MIFIDA woman’s constitutional right to decide “to terminate her pregnaney derives from the Due Process Clause of the Fourteenth Amendment.” Casey, 505 U.S. at 846. “Itis a promise of the Constitution that there is a realm of personal liberty which the government may not enter,” specifically “a person's most basic decisions about family and parenthood,” d, Regulating abortion is different than regulating other types of medical procedures “because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.” Id. at 833, In Casey, the Supreme Court of the United States decided that before viability, “the ‘woman has a right to choose to terminate her pregnancy.” Jd. Viability “is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all faimess be the object of state protection that now overrides the rights of the woman.” /d. The Court acknowledged that “there may be some medical developments that affect the precise point of viability,” but that the line of viability was the most “fair” and “workable” option. Id, Federal and State Courts Have Declared Even Less Restrictive Bills Unconstitutional Federal and State Courts have already held that laws that prohibit abortion from the time a fetal heartbeat is detected are unconstitutional. In an identical case from 2013 the North Dakota legislature passed a bill prohibiting “a physician from performing an abortion ona pregnant woman if the unborn child has a heartbeat.” MKB Mgmt, Corp. v. Stenehjem, 795 F.3d 768, 770 (8th Cir, 2015) (internal quotations omitted), ‘The bill was challenged and the Fighth Circuit declared it unconstitutional, holding that, “[b]efore viability, a State ‘may not prohibit ‘any woman from making the ultimate decision to terminate her pregnancy,’” and defined viability as “the time ‘when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of ... survival outside the womb, with or without artificial support.”” Jd. (quoting Colautti, 439 U.S. at 388). The court struck down the law. Jd. The Supreme Court declined to hear an appeal. See Stenehjem vy. MKB Mgmt. Corp., 136 S, Ct. 981 (2016). In striking down an identical bill in Towa, which prohibited an abortion “upon the detection of a fetal heartbeat,” an Iowa State Court recently held, “[rJegardless of ... precisely when a fetal heartbeat may be detected in a given pregnancy, it is undisputed that such cardiac activity is detectable well in advance of ... viabfility].” Planned Parenthood, et al., v. Kim Reynolds, et al., Case No. EQCE 83074; at *1, #3 (Iowa Dist. Ct. for Polk Cnty, Jan. 22, 2019), Quoting Roe v. Wade, the court confirmed that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnaney before viability,” and any bill that does so “is violative of both the due process and equal protection provisions of the Iowa Constitution.” Id. at 5, 8. Land,” THE ATLANTIC, Mar. 22, 2017, available at hitps:/www.theatlantic.com/politis/archive/2017/03/neil- gorsuch-confirmation-hearing/520425/; Jorden Caimey, “Kavanaugh: Roe v. Wade has been ‘reaffirmed many times,” THE HiLL, Sept. 5, 2018, available at https:/thehill.com/homenews/senate/40S135-kavanaugh-roe-v-wade- hhas-been-reaffirmed-many-times.The unconstitutionality of SB 9 is not a close call; federal courts have repeatedly struck down less restrictive measures than SB 9, For instance, the Eighth Circuit also declared unconstitutional a less restrictive Arkansas law, which prohibited abortions after twelve weeks if aheartbeat was detected, awards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015), Other courts have struck down state laws that banned or restricted abortions at 20 weeks. In Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013), cert. denied by Isaacson v. Horne, 134 S.Ct, 905 (US. Jan, 13, 2014), the Ninth Circuit Court of Appeals held the 20-week law “unconstitutional under an unbroken stream of Supreme Court authority” and stated that “Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable.” 716 F.3d at 1231 (emphasis added), In McCormack v. Herzog, the Ninth Circuit held unconstitutional Idaho’s law that created 2 20-week ban, 788 F.3d 1017, 1033 (9th Cir. 2015). In so ruling, the Ninth Circuit affirmed the District Court’s holding in McCormack v. Hiedeman, 900 F.Supp.2d 112 (D. Idaho 2013), in which the court noted that “20-week bans “embodfy] a legislative judgment equating viability with twenty weeks” ... which the Supreme Court expressly forbids.” (emphasis added), In Jane L. v, Bangerter, the Tenth Circuit held that a Utah ban on abortion after 20 weeks ‘was “unconstitutional in that it unduly burdens a woman’s right to choose to abort” before viability, 102 F.3d at 1118, The court stated that the law, “which effectively defines viability as occurring at twenty weeks gestational age, is directly contrary to the Supreme Court authority ..” 102 F.3d at 1115. ‘The Sixth Cireuit, which includes Kentucky and which would hear any challenge to SB 9, would reach the same conclusion about this bill. That court struck down Ohio’s ban on so-called ition and extraction (D & X)” procedures. Women’s Med. Prof! Corp. v. Voinovich, 130 F.3d 187, 202 (6th Cir. 1997). ‘Those procedures are usually performed affer 20 weeks — much later than the six-week cutoff in SB 9, Id, at 198-99, Nonetheless, the court held that the ban was unconstitutional, Jd, at 202-03. Other States Have Recognized The Futility of Passing Bills Like SB 9 As set forth above, the case law is clear: SB 9 is unconstitutional, Relying on this clear precedent, Governor Kasich of Ohio recently vetoed a bill that was very similar to SB 9, In his, veto message, he explained that the heartbeat bill was “clearly contrary to the Supreme Court of the United States? current rulings on abortion.” He noted that similar legislation in other states, had “twice been declared unconstitutional,” and that Ohio’s bill “will be struck down.” As a result, “The State of Ohio will be the losing party in that lawsuit and, as the losing party, the State of Ohio will be forced to pay hundreds of thousands of taxpayer dollars to cover the legal fees for the pro-choice activists’ lawyers.”® The legislatures of Alabama, Kansas, Mississi Texas, and Wyoming have rejected similar bills in recent years, 2 hups:l/www legislature ohio.gov/Assets/LegislationDocuments/13 1/VetoMessageSubH1B493.paf, “Indeed, in Planned Parenthood, v. Kim Reynolds, Case No. EQCE 83074 at *8, the state respondents were immediately assessed the costs ofthe proceedings.