Republican lawmakers voted late last week to override Democratic Gov. Andy Beshear’s veto of House Bill 90, which they say clarifies when life-saving abortions are legal. But it adds anti-abortion language and could subject doctors to tougher scrutiny in court.
The Kentucky Center for Investigative Reporting researched how the new changes may affect patients and their doctors. WFPL host Bill Burton spoke with KyCIR’s Morgan Watkins about what she learned.
Listen to the conversation in the audio player above.
This transcript has been edited for length and clarity.
Bill Burton: For starters, what does House Bill 90 do?
Morgan Watkins: Republicans say it’s supposed to make state law less ambiguous about when doctors can legally provide a life-saving abortion. Reports have shown how bans like Kentucky’s have led to the preventable deaths of patients.
So Kentucky’s new law explicitly lists exceptions to the ban. For example, it says doctors are OK to remove ectopic pregnancies or do “lifesaving miscarriage management.”
I talked to a Louisville OB-GYN who thinks the law still isn’t clear enough about when she can intervene to treat a miscarriage. When Beshear vetoed House Bill 90, he similarly said it contains gaps that are “literally a matter of life and death.”
BB: Abortion rights advocates say the bill includes language that could endanger patients. What did you learn about that?
MW: So the law redefines abortion to argue that if it’s done to save someone’s life, it isn’t really an abortion. Instead, the law calls it “actions that require separating the pregnant woman from her unborn child.”
That echoes a recommendation by the American Association of Pro-Life OB-GYNs. This anti-abortion group suggests calling life-saving abortions “medically-indicated maternal-fetal separation” instead.
But the American College of OB-GYNs, which is the medical specialty’s leading professional association, says “maternal-fetal separation” is a misleading term. And, it says that the phrase is used to justify performing riskier cesarean sections or induced labor instead of safer and more common abortion procedures.
Republican legislators who worked on the law say they aren’t trying to push doctors to do more C-sections. That’s why they included open-ended descriptors like the term “medically necessary intervention” – to give doctors leeway on what procedure they use.
BB: Are there any other important changes to the abortion ban?
MW: Yes. It says doctors should use their “reasonable medical judgment” to decide when an emergency abortion is needed. Previously, this section of state law said they should use their “good-faith clinical judgment.”
That change may sound minor. But Mary Ziegler, an expert on abortion law, told me it would subject doctors to a tougher evaluation if they’re charged with violating the ban.
The old, good-faith standard hinges on whether a doctor sincerely believed their patient needed an abortion. The new standard is based on whether a reasonable doctor would agree.
Ziegler says that’s less deferential to doctors and could make them more wary of giving life-saving abortions.
Beshear cited this change in the law as another reason for his veto.
BB: What do House Bill 90’s Republican architects say?
MW: State Rep. Jason Nemes of Middletown led the charge to pass it, and he says their intention was not to make it harder for doctors to defend themselves. He also told me these “reasonable person” standards are used in many types of law.
If someone is accused of violating the ban, Nemes says they'll be fine as long as they show they acted within the realm of reasonableness for their profession.
He and two other Republicans who worked on the law also say they’re open to discussions about how to further clarify the state’s abortion ban and reassure doctors they can intervene to help patients in life-threatening situations.
