LEXINGTON, Ky. — Over protesters chanting "Abortion is health care!" in the Kentucky Senate chambers on Tuesday, Republicans passed a hefty omnibus bill that opponents say will effectively end abortion access in Kentucky.
Republican lawmakers, in the eleventh hour, rolled two abortion bills into one: the final version of House Bill 3 from Rep. Nancy Tate, a Brandenburg Republican, an omnibus anti-abortion bill that puts even more restrictions on the already highly regulated procedure in Kentucky, now includes contents of Senate Bill 321 from state Sen. Max Wise, a Campbellsville Republican, added in the form of an amendment, which bans abortions after the 15-week mark in a pregnancy.
Wise's bill is modeled after a Mississippi bill on appeal before the U.S. Supreme Court. In that case, Mississippi has asked the high court to not only uphold its 15-week abortion ban, but to also overturn Roe v. Wade, the 1973 landmark case prohibiting states from banning abortion before a fetus is viable, usually around 23 weeks.
Senate Republicans voted unanimously to pass the amended version of House Bill 3 Tuesday afternoon, and just after 9:30 p.m., the House gave it final passage in a 74-19 vote.
House Bill 3 is "solely and deliberately designed to eliminate all abortion in the state of Kentucky," said Tamarra Wieder, Kentucky state director of Planned Parenthood Alliance Advocates, who called on the governor to veto the bill. "This bill ignores our constitutional rights, dismisses science and contradicts public opinion."
Tate has rebuffed that characterization, saying her bill is one that prioritizes health care protections for women and minors seeking abortions.
Kentucky passed a "trigger law" in 2019, which immediately bans the medical procedure if Roe v. Wade is overturned, Tate told committee members earlier this month. In the meantime, "While abortions are legal in Kentucky, we want them to be as safe as possible," she said.
House Bill 3, named the "Humanity in Healthcare Act 2022" will:
—Make illegal the sending of abortion pills by mail.
—Tighten the current laws impacting parental consent for minors seeking abortions.
—Raise the bar for when a court can grant judicial bypass for a minor seeking an abortion.
—Enshrine that no "public agency funds" are used, directly or indirectly, to fund an abortion.
—Codify the "dignified care for the terminated remains of pregnancy loss."
—Require the state publish the names and addresses of all physicians who perform abortions to a public database.
On the Senate floor Tuesday, bill supporter state Sen. Ralph Alvarado, a Winchester Republican, said that in most circumstances, "abortion is never the best choice."
But state Sen. Karen Berg, a Louisville Democrat, said that view — and other opinions buoying Republican support for the bill — is rooted in moral ideology, not science. Berg, whose recent impassioned speech against Wise's bill earned her wide internet fame, said House Bill 3 is a blatant attempt by Republicans to enshrine their definition of morality as it relates to abortion "under the guise of safety for women."
"You're going to regulate a safe medical procedure out of existence because you don't believe in it," she said. "Leave us alone. Leave your religion and your morality out of my health care decisions."
As Republican senators cast their votes on the bill, Berg joined other Democrats in walking out of the chambers, protesting the bill and the futility of casting a no vote. State Sen. Reggie Thomas, a Lexington Democrat, said he and the other nine Democrats didn't want to dignify "this onslaught on a woman's right to choose" by watching Republicans push the bill through unanimously. It passed 29-0.
It will now be sent to Gov. Andy Beshear, who has signaled a veto. When asked in a news conference earlier this month about his action on the pair of restrictive abortion bills, Beshear said he would "veto any extremist bill."
But even if the Democratic governor vetoes either bill, Republican lawmakers have a supermajority in both chambers, giving them the power to override vetoes. In that case, the bill's emergency clause means it will go into effect immediately.
Though the U.S. Food and Drug Administration in December decided to permanently allow receipt of abortion pills by mail, House Bill 3 bans the practice in Kentucky.
Both Berg and state Rep. Josie Raymond, a Louisville Democrat, cited a study published last week in the Journal of the American Medical Association showing the efficacy and safety of medication abortion prescribed without an in-person visit. House Bill 3 mandates that abortion pills can only be prescribed after a in-person assessment by a physician.
Of the nearly 4,000 women in the study who received a medication abortion without an in-person medical evaluation, 95% needed no additional medical intervention after their abortion.
"Screening for medication abortion eligibility by history alone was effective and safe with either in-person dispensing or mailing of medications," authors of the study wrote. This method, they said, "maintains high effectiveness and low risk."
Physicians can still prescribe in person under HB 3, but Tate's bill sets up a monitoring and certification process that the Kentucky Board of Pharmacy is tasked with overseeing.
Board of Pharmacy President Christopher Harlow told lawmakers earlier this month that his licensing branch doesn't have the resources or staff volume to take on oversight of the Kentucky Abortion-Inducing Drug Certification Program, as Tate's bill has dubbed it.
Some of the tasks potentially given to the Board, such as establishing certification requirements for qualified physicians to dispense these drugs, are outside of the Board's purview, Harlow said.
"Currently there's no funding to support this," he said in a March 1 legislative committee meeting.
Creating such a system, and performing audits of pharmacists, manufacturers and distributors, as Tate's bill also calls for, requires a "massive amount of resources that we currently do not have, and our inspection staff is currently at capacity."
The certification process, along with cremation or burial of all aborted fetuses (also required in the bill), will place undue cost burdens on abortion facilities, opponents say.
Tate's bill also requires extensive documentation of the procedure itself and those who participate in it, the age, race, and county of residence of the person receiving the abortion, as well as the approximate age of the father.
Physicians must 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," according to the bill.
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 reported to a statewide registry accessible to the public, a move that opponents say opens the door to intimidation and harassment.
Tate's bill also raises the bar for judicial bypass, an avenue available to minors seeking an abortion in which parental consent is not in their best interest. This confidential alternative serves kids and teenagers 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 grants 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 requesting an abortion.
In turn, the minor would need to demonstrate an "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."
Alvarado on Tuesday said this aspect of the bill serves to remind judges that it is almost always in the "best interest" of a minor seeking permission for an abortion to tell her parents, "even if she's scared."
House Bill 3 is buttressed by a belief that abortion is murder, as several Republican lawmakers have pointedly remarked in their supportive testimony of the bill throughout this session.
Abortion is not the answer even for survivors of rape or incest, Tate said last week, calling it the "ultimate punishment of death for the child in the womb that is conceived from a heinous crime."
Nicole Aghaaliandastjerdi, a rape survivor who testified against the bill before a Senate committee last week, said Republicans' singular commitment to this bill and "the way legislators have used it as a tool to say they are pro-life is behavior demonstrated by the best abusers I've seen. If you pass this bill, you will most certainly join them."
