LEXINGTON, Ky. — As the future of abortion access hangs in the balance nationally, a far-reaching omnibus bill that seeks to further restrict abortion in Kentucky won approval from a House legislative committee Tuesday.
House Bill 3 from state Rep. Nancy Tate, a Brandenburg Republican, received unanimous support from Republicans on the House Committee on Veterans, Military Affairs and Public Protection. The "Humanity in Healthcare Act 2022" aims to:
—Make illegal the sending of abortion pills by mail.
—Tighten the current laws impacting parental consent when minors seek abortions.
—Narrow the parameters of when a court can grant judicial bypass for a minor seeking an abortion.
—Enshrine that there are no taxpayer-funded abortions in Kentucky.
—Codify the "dignified care for the terminated remains of pregnancy loss."
Tate has presented the bill as a way to protect the health and safety of people seeking abortions as well as their "human baby."
Michael Johnson, policy adviser for the Kentucky Family Foundation, praised Tate's bill and her "desire to restore the public's trust in the medical profession."
But bill opponents, including Tamarra Wieder, director for Planned Parenthood Advocates of Indiana and Kentucky, were swift to reject all aspects of the bill for having no basis in best medical or ethical practices.
"This bill piles on a long list of abortion restrictions, none of which are based in best medical practice and patient safety, and all of which will harm abortion patients and providers," Wieder said. "Years of medical research and studies have demonstrated that legal abortion is one of the safest medical procedures in the United States."
Wieder chided Tate's proposal to make the distribution of abortion pills by mail illegal — a step that "directly contradicts" a U.S. Food and Drug Administration December decision to allow patients to obtain abortion pills by mail via telehealth consultations. Medication abortion, widely considered safe and effective, accounts for more than half of all abortions administered in the country before nine weeks of gestation, according to the Kaiser Family Foundation.
Roughly half of the 4,104 abortions administered in Kentucky in 2020 were medical abortions, according to the Department for Public Health's Office of Vital Statistics. Thirteen were performed on people under age 13, and 366 were performed on teenagers ages 15 to 19.
Many of the restrictions outlined in the bill are already written into law, or the practice is highly regulated: Health care facilities already have standards in place for how to respectfully dispose of fetal remains, and parental consent is currently required in Kentucky for a minor to receive in abortion.
Tate's bill takes those measures a step further.
Under her proposal, physicians would be required to sign an affidavit stating they personally secured written, notarized parental consent. Intentional violation of this standard is considered a Class D felony for the doctor. Parental consent to this degree is not required if a parent or guardian is enjoined on a domestic violence or interpersonal violence order, or if they have been convicted of a criminal offense against the minor.
Tate's bill also raises the bar for judicial bypass, an avenue available to any minors seeking an abortion in which parental consent is not in their best interest. The confidential alternative to parental consent seeks to serve minors in especially vulnerable positions, including if there's a threat of violence in their home, or if their pregnancy is the result of rape or incest.
HB 3 would grant more subjectivity to judges weighing these petitions, requiring them to find "clear and convincing evidence" the minor is mature, and gauge the minor's "credibility and demeanor as a witness." In turn, the minor would need to demonstrate "ability to accept responsibility"; "ability to assess both current and future life-impacting consequences of and alternatives to the abortion"; and the "ability to understand and explain the medical risks the medical risks of the abortion and to apply that understanding to her decision."
Each of these provisions would need to be met before judicial bypass is granted, or the court must find a preponderance of evidence that the minor is a victim of child or sexual abuse at the hands of one or both parents or legal guardians. The bill would require the state to annually report the number of petitions filed each year, and how many were granted.
Under Tate's bill, the judicial bypass does have an exemption if a medical emergency occurs during the procedure. A physician is allowed to contact the minor's parent or legal guardian and provide "details of the medical emergency that necessitated the abortion without the parent's or legal guardian's consent."
When an abortion is performed, Tate's bill also mandates extensive documentation of the procedure itself and those who participated in it, including the minor's place of residence, age, race and approximate age of the father. Physicians would be required to log the "total number and dates of each previous pregnancy, live birth and abortion of the pregnant patient," as well as the "probable gestational and post-fertilization ages of the unborn child," and the "reason for the abortion, if known."
Tate's bill also requires the issuance of a birth and death certificate for an aborted fetus that includes the name of the mother and father.
The full name, address of the both the physician who performed the abortion and the referring physician, as well as the address at which the abortion was performed, would also be logged.
In a state considered "hostile" to abortion rights, Wieder said this requirement is "essentially creating a hit list for anti-abortion extremists."
"Clearly the goal is to end all access to abortion for all people regardless of their circumstances," Jackie McGranahan, policy strategist with the American Civil Liberties Union of Kentucky, added.
But bill co-sponsor Rep. Bill Wesley, a Ravenna Republican, said arguments about abortion as health care access are tertiary to the matter at hand.
"We're talking about the life of a human being, a baby. That's the discussion today," he said. Responding to the argument that it's a woman's choice and no one else's business, Wesley said, "today we do make it our business. I will speak for the unborn that doesn't have a voice today."
While the provisions in Tate's bill are extensive, they are the latest in a long list of bills the Republican-majority General Assembly has passed in recent years restricting abortion access, including a 2021 bill to amend the Kentucky Constitution and remove the guaranteed right to an abortion. Residents will vote on in a statewide referendum later this year.
In 2019, Kentucky passed a trigger law that will immediately make the medical procedure illegal in the commonwealth if the U.S. Supreme Court overturns Roe v. Wade next summer.
