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Attorney General William Tong



Coalition of 19 AGs Oppose Kentucky’s Unconstitutional Crackdown on Abortion and Reproductive Freedom

Attorney General William Tong today joined a coalition of 19 attorneys general across the country in filing an amicus brief in the United States Court of Appeals for the Sixth Circuit, challenging a Kentucky state law that would ban physicians from providing second-trimester abortion services using the most common and safest procedure available for women after 15 weeks of pregnancy.

"This law is unconscionable and a dangerous attack on women's constitutional rights and reproductive freedoms. Barring physicians from providing second-trimester abortion services using the safest procedure available will ultimately jeopardize and endanger women's lives. I stand with 19 other attorneys general across the country in protecting and defending a woman's right to choose and access the reproductive care they need," said Attorney General Tong.

Kentucky’s law imposes civil and criminal penalties on doctors who perform the standard dilation and evacuation (D&E) procedure, requiring Kentucky physicians to terminate the fetal heartbeat using risky, difficult, and potentially ineffective procedures prior to the evacuation phase of a standard dilation and evacuation (D&E) abortion. Standard D&E procedures are widely regarded as the safest and most common method of second-trimester abortion after 15 weeks of pregnancy.

The attorneys general argue that under the Supreme Court’s controlling “undue burden” standard, an abortion regulation is unconstitutional when its benefits to a state interest are not sufficient to justify the law’s burdens on abortion access. Where, as here, an abortion regulation would in effect ban safe and legal second-trimester abortions after 15 weeks of pregnancy, no purported benefit is sufficient to justify the burden on access because bans on pre-viability abortions are unconstitutional.

On May 10, 2019, U.S. District Judge Joseph H. McKinley Jr. ruled that the 2018 law, which required women seeking an abortion at or beyond 15 weeks of pregnancy to first undergo a "fetal demise" injection, was "unconstitutional." Judge McKinley additionally issued a permanent injunction against the law. Kentucky appealed to the United States Court of Appeals for the Sixth Circuit. The States’ amicus brief urges the court to affirm the district court’s decision.

In addition to Attorney General Tong, the brief, led by New York Attorney General Letitia James, was joined by the Attorneys General of California, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.

Mark Kohler, Special Litigation Department Head, is assisting the Attorney General with this matter.
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