Regulating Post-Roe: First Bill Signed by Governor Bevin Amends Kentucky Informed Consent Abortion Law

Mary Tanner, KLJ Staff Editor[1]

In what has become the first bill signed into law by Governor Bevin, the Kentucky legislature took up a contentious issue in the Commonwealth – abortion. SB 4, sponsored by Sen. Julie Raque Adams (R-Louisville), requires women seeking an abortion in Kentucky to receive the requisite information under Kentucky law to meet “voluntary and informed written consent” in person at least 24 hours before the procedure,[2] though an amendment introduced by the House allows for the meeting to be held via video conference as an alternative.[3]

Under the previous statute,[4] women had been able to receive this information—including the medical risks and alternatives, probable gestational age of the embryo or fetus, availability of printed materials regarding agencies and services available should she choose to continue her pregnancy, as well as the liability of the father to assist in supporting the child—over the phone by calling a pre-recorded message.[5]

On January 19, the bill passed the Republican-controlled Kentucky Senate by a vote of 32-5, with votes from a number of Democrats, including Senate Minority Leader Ray Jones of Pikeville.[6]

In a statement following the Senate’s passage of SB4, Derek Selznick, director of the Kentucky ACLU’s Reproductive Freedom Project, decried the bill as “a forced delay to access safe and legal abortions, creating needless obstacles for women, especially burdening those that live outside of Louisville and Lexington where the Commonwealth’s two clinics are located” and further noted that, regarding the ability to have the required counseling session over the phone, “[n]o reason or evidence has been presented to show these regulations are inadequate or need to be changed.” [7]

Although similar bills have passed the Senate in years passed only to die in committee in the House, this year’s bill took a distinct new path. Whereas previous legislation on the issue was referred to the House Health and Welfare Committee and never made it to a vote on the House floor, the House voted 72-11 to suspend rules on the floor on January 20 to give SB4 a first reading.[8] House Health and Welfare Committee Chairman Tom Burch (D-Louisville) said, “You know, we have members change every two years, and thoughts change on the issues every two years.”[9] The current makeup of the committee is 9 Democrats and 6 Republicans.[10]

Fears asserted by the Kentucky Religious Coalition for Reproductive Choice in an email that stated House Speaker Greg Stumbo (D-Prestonburg) was “leaning towards” assigning SB4 not to Health and Welfare, the committee that has previously declined to send similar bills to a floor vote, but to the committee on Veterans, Military Affairs, and Public Safety[11] turned out to be unfounded, as SB4 was sent to the Health and Welfare Committee.[12] In a “passionate meeting [which] took place inside a packed side office at the Capitol,” on January 29, the members of the Health and Welfare Committee attached the video-conferencing amendment to SB4, which was then passed on the House floor by a vote of 92-3, in spite of many House Republicans being “upset they had only minutes to read the 6 page amendment.”[13]

Democrats currently control the Kentucky House by a margin of 50-46, and special elections in March will decide four additional seats.

Selznick’s organization responded to the amended version of SB4 following its House passage in a statement, saying, “Senate Bill 4, despite language added in committee, remains an attempt by legislators to interfere with patients and the care they deserve from medical care providers, masquerading itself as a bill that helps women.”[14]

Monday, the Senate voted 33-5 to approve the amended version of the bill.[15] Yesterday, SB4 was delivered by a delegation of lawmakers, and Governor Bevin, in an “unorthodox” process, signed it almost immediately.[16] Governor Bevin initially inquired of the accompanying senators whether he should sign the bill then, or wait until February 11, when a right-to-life rally is scheduled at the Capitol.[17] Sponsoring Senator Adams replied, “You’re the governor,” and Governor Bevin decided to sign the bill without delay, though he “indicated he would ceremonially do the same at the rally.”[18]

According to the Guttmacher Institute, seventeen states currently require that women seeking an abortion receive counseling beforehand, and twenty-eight states require a waiting period, usually 24 hours.[19]

[1] J.D. expected May 2017.
[2] S.B. 4, 2016 Reg. Sess., (Ky. 2016).
[3] Informed consent bill clears House, returns to Senate, Legislative Research Commission (Jan. 28, 2016), http://www.lrc.ky.gov/pubinfo/release.htm.
[4] Ky. Rev. Stat. Ann. § 311.725 (West 2006).
[5] Chris Williams, The Powers That Be: One-on-one with the Informed Consent abortion bill sponsor, WHAS11 (Jan. 30, 2016, 12:47 PM), http://www.whas11.com/story/entertainment/television/powers-that-be/2016/01/30/powers-one–one-informed-consent-abortion-bill-sponsor/79543228/.
[6] An Act relating to full disclosure in public safety, S.B. 4, 2016 Reg. Sess., (Ky. 2016) (vote on Kentucky Senate floor), http://www.lrc.ky.gov/record/16RS/SB4/vote_history.pdf.
[7] Anti-Abortion SB4 Passes Out Of Committee, American Civil Liberties Union of Kentucky, http://www.aclu-ky.org/articles/anti-abortion-sb4-passes-out-of-committee/.
[8] Mike Wynn, Lawmakers signal support for ‘informed consent’, Louisville Courier-Journal (Jan. 21, 2016, 10:19 AM), http://www.courier-journal.com/story/news/politics/ky-legislature/2016/01/20/lawmakers-signal-support-informed-consent/79078286/.
[9] John Cheves, Kentucky Senate to get ‘informed consent’ abortion bill, Lexington Herald-Leader (Jan. 13, 2016, 11:56 AM), http://www.kentucky.com/news/politics-government/article54460740.html.
[10] 2016 House Standing Committee on Health and Welfare Members, Kentucky Legislature, http://www.lrc.ky.gov/Committee/standing/H&W(H)/members.htm.
[11] E-mail from Kentucky Religious Coalition for Reproductive Choice (on file with author).
[12] Chris Williams, Informed Consent abortion bill passes Kentucky House, WHAS11 (Jan. 28, 2016, 11:50 PM), http://www.whas11.com/story/news/politics/2016/01/28/informed-consent-abortion-bill-passes-kentucky-house/79497386/.
[13] Id.
[14] Anti-Abortion SB4 Passes KY House 92-3, American Civil Liberties Union of Kentucky, http://www.aclu-ky.org/articles/anti-abortion-sb4-passes-ky-house-92-3/.
[15] An Act relating to full disclosure in public safety, S.B. 4, 2016 Reg. Sess., (Ky. 2016) (vote on Kentucky Senate floor), http://www.lrc.ky.gov/record/16RS/SB4/vote_history.pdf.
[16] Bevin signs abortion bill as soon as it arrives, Associated Press, (Feb. 2, 2016, 5:21 PM), http://www.courier-journal.com/story/news/politics/ky-governor/2016/02/02/bevin-signs-abortion-bill-soon-arrives/79717082/.
[17] Jack Brammer, Bevin signs informed consent abortion bill, Lexington Herald-Leader, (Feb. 2, 2016, 5:36 PM), http://www.kentucky.com/news/politics-government/article57993778.html.
[18] Id.
[19] An Overview of Abortion Laws, Guttmacher Institute, (updated Jan. 1, 2016), http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf.