Can you ban abortions based on gender or race?

The answer to the title question, at least in Kentucky, appears to be yes… at least for now. The Governor of Kentucky has signed a bill into law that prohibits the performance of abortions if the mother requests the procedure based on the sex or race of the child, or because of a disability. The law has already been challenged, and to say that the details of it are legally problematic is something of an understatement.

Kentucky governor Matt Bevin on Tuesday signed a bill that bans abortions chosen on the basis of an unborn child’s sex, race, or disability.

A court filing in the U.S. District Court in Louisville indicated that the governor has signed the bill, which included an “emergency clause” stipulating that it would go into effect immediately.

Physicians must now certify in writing that the patient did not request the abortion for a reason related to the baby’s sex, race, or disabilities. Flouting the new law puts doctors at risk of losing their medical license or being prosecuted for a felony, although the mother of the unborn child would not be targeted.

Without a reversal or at least partial dismantling of Roe v. Wade, any law that seeks to broadly ban abortions, including those done very early in the first trimester, is going to run into problems with the courts. And a law based on what could only be described as “motive” would also face an uphill climb.

But that’s not even the biggest question surrounding this bill from my point of view. While I sympathize with the intent, what mechanism allows the government to legally enforce the provisions of this law? First of all, in order to have a reasonable suspicion that a crime had taken place and needed to be investigated, you would have to know what conversations took place between the doctor and the patient. But that information is protected.

Let’s just say for the moment that you could get around the medical records privacy issue somehow. What’s to stop a doctor from informing their patients up front that they couldn’t have an abortion if they requested it for one of these specific reasons, but they can have the procedure with no problems if they just say they don’t feel like having a baby? It’s already been made clear that this law would restrict the actions of doctors, not the mother. Are we really going to be sending out the cops to drag a woman into court and attempt to force her to testify under oath as to what she said to her OBGYN?

I can see how this law would be quite popular among conservatives and Matt Bevin will probably get a lot of credit for it from his base. But at the same time, even if this law survives the court challenges that await, I’d be very curious to hear if it’s ever enforced and anyone is convicted of it even once. It seems like an impossibly high bar to meet.

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John Sexton 10:00 PM on June 02, 2023