Over the course of the historic first week of the 2017 Regular Session two bills were passed that aimed to give greater information to women seeking an abortion and to restrict when abortion should be available because the unborn child can feel pain from the procedure.
HB2 require an ultrasound be performed prior to an abortion so that the mother can be fully informed about the procedure and the life she carries before making the decision to choose abortion.
SB5 prohibits abortions after the 20th week of pregnancy, except in cases of medical emergencies, because the babies can feel pain.
Both bills contained emergency clauses, making them take legal effect immediately upon the Governor's signature. The ACLU promptly sued the Commonwealth over HB2 (ultrasound) on the grounds the bill is unconstitutional. I disagree.
Unfortunately, the duty of defending the law falls on the shoulders of an attorney general I have little faith will actually work hard to defend the law's constitutionality. And General Beshear removed all doubt with the following press statement on the matter:
As attorney general, it is my duty to enforce the Constitution. It is also my duty to defend laws where the constitutionality is questionable and finality is needed. Adhering to these duties is why, after close review, my office will defend the agencies sued over House Bill 2 that seek our representation. Whether a mandatory ultrasound and explanation is constitutional has split the two federal appellate circuits that have directly addressed it. 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. Conversely, my office will not represent the state on any challenge to Senate Bill 5, the 20-week ban. This law is clearly unconstitutional based on our review of numerous federal appellate rulings, which state that identical statutes in other jurisdictions are illegal under numerous Supreme Court decisions. While these decisions may not please advocates on either side, my duty is to the law.
Given the AG's lukewarm support for legislation protecting human life, passed by an overwhelming bipartisan number of legislators representing the vast majority of the people of the Commonwealth, I joined with the House Judiciary Chair, Hon. Joseph Fischer; the Speaker of the House, Hon. Jeff Hoover; and the President of the Senate, Hon. Robert Stivers, in filing an amicus brief in support of HB2.
You can view the brief and other court filings right here:
Note the detail and passion of the General's response to the ACLU's motion for the temporary restraining order to temporarily stop the ultrasound requirement. Spoiler Alert: "...the Attorney General does not take a position on the Plaintiffs' Motion for a Temporary Restraining Order."
Here's the ACLU lawsuit challenging the constitutionality of HB2 if you care to read it: