Tuesday, August 01, 2000

Kentucky abortion law ruled improper

Ohio law also faces challenge

By Tim Bonfield and Susan Vela
The Cincinnati Enquirer

        The U.S. Court of Appeals for the 6th Circuit in Cincinnati agreed Monday that a Kentucky law prohibiting certain late-term abortion procedures is unconstitutional, reigniting a continuing debate on both sides of the Ohio River.

        Some Kentuckians promised a continued fight against abortions, while conceding a certain degree of futility in appealing Monday's decision.

        In June, the U.S. Supreme Court ruled that a Nebraska law very similar to Kentucky's was unconstitutional.

        “I don't know if crafting (the law) would change” their decision, said Margie Montgomery, executive director for the Kentucky Right to Life Association. “I'd be open to an appeal (but) I don't see much value in this at this time.”

        Corey Bellamy, spokesman for Kentucky Attorney General Ben Chandler, said Monday's decision must be reviewed before Mr. Chandler decides what avenue to take next. He refused further comment.

        The federal appellate

        court's decision upheld a 1998 ruling by U.S. District Judge John Heyburn that Kentucky's law was too vague and effectively would outlaw some abortion procedures that are legal. Opponents call these procedures partial birth abortions, a rarely used procedure.

        The ACLU had challenged the law approved overwhelmingly by the Kentucky General Assembly.

        Catherine Weiss, director of the American Civil Liberties Union's Reproductive Freedom Project, was a lead attorney.

        She thinks an appeal would be a waste of time and taxpayers' money because of the outcome of the Nebraska case.

        “The laws are simply too similar for there to be any constitutional distinction between them,” she said.

        She doesn't expect that to deter states from pursuing anti-abortion laws.

        Rep. Jim Callahan, D-Wilder, would support any attempt by his fellow legislators to seek another ban.

        “I don't know if life can ever have a price tag put on it,” he said. “If there's a way to stop it, we'd be less than honorable to not” pursue it.

        On May 19, Ohio Gov. Bob Taft signed Ohio's second attempt at a partial birth abortion ban. The new law is scheduled to take effect Aug. 17. How much of a factor the Kentucky decision will be in the Ohio case remains a matter of debate.

        Last week, Dr. Martin Haskell, who has abortion clinics in Dayton, Ohio, Cincinnati and Akron, filed suit in U.S. District Court in Dayton to block enforcement of Ohio's law.

        Ohio's first ban — the first of its kind nationwide — was passed in 1995 but was struck down in a series of rulings that went up to the U.S. Supreme Court in 1998. The nation's highest court refused to hear the case, allowing a lower appeals court opinion to stand.

        “Ohio's statute is considerably different,” said Mark Lally, legislative counsel for Ohio Right to Life.

        Ohio's new law uses a different definition to describe “partial birth feticide” than used in the Kentucky and Nebraska laws.

        Also, Ohio's law would allow the procedure in some cases where women face physical risk from a continued pregnancy. There were no health-related exemptions in the Kentucky and Nebraska laws, Mr. Lally said.

        However, Ohio's new law still does not recognize exemptions for the mental or emotional health of the woman, said Alphonse Gerhardstein, a Cincinnati attorney who represents Dr. Haskell. And despite its changes, Ohio's law would still ban too many other well-established second-trimester abortion procedures, he said.

        The Associated Press contributed to this report.


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