EMW Women's Surgical Center P.S.C. v. Friedlander, No. 19-5516 (6th Cir. 2020)
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In the first trimester of pregnancy, an abortion may be performed by using medication or by using suction to remove the contents of the uterus. Starting around 15 weeks of pregnancy, physicians must use the dilation and evacuation (D&E) method, first dilating the patient’s cervix, and then using instruments and suction to remove the contents of the uterus. Kentucky’s House Bill 454 provides: No person shall intentionally perform or induce or attempt to perform or induce an abortion ... [t]hat will result in the bodily dismemberment, crushing, or human vivisection of the unborn child . . . [w]hen the probable post-fertilization age of the unborn child is eleven (11) weeks or greater.” H.B. 454 forbids D&E abortions on “living unborn” fetuses but does not suggest that physicians induce fetal demise before a D&E.
Enforcement of the law was stayed pending resolution of a constitutional challenge. The state argued that H.B. 454 simply required individuals seeking a D&E abortion to first undergo a procedure to induce fetal demise by injecting digoxin into the fetus or amniotic sac, by injecting potassium chloride into the fetal heart, or by cutting the umbilical cord. The district court permanently enjoined the enforcement of H.B. 454, finding that it imposed an undue burden on one’s right to elect an abortion prior to viability, in violation of the Fourteenth Amendment. The court concluded that none of the identified procedures was a feasible option for inducing fetal demise and, therefore, H.B. 454 effectively banned D&E abortions. The Sixth Circuit affirmed. The burdens imposed by H.B. 454 dramatically outweigh any benefits. H.B. 454 imposes an undue burden on all of the individuals it restricts; facial relief is appropriate.
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