AG willing to defend state in suit against ultrasound law

January 10, 2017

LOUISVILLE, Ky. (AP) — Attorney General Andy Beshear said Tuesday he’s ready to defend Kentucky’s new law that requires doctors to perform an ultrasound prior to an abortion, but declared his unwillingness to represent the state if its 20-week abortion ban faces a court challenge.

That law prohibits abortions in Kentucky after 20 weeks of pregnancy unless the mother’s life is in danger. Beshear said his office’s review determined that law is “clearly unconstitutional.”

The ultrasound law is already under legal attack. The American Civil Liberties Union on Monday filed a federal lawsuit aimed at blocking the law that requires abortion providers display and describe the ultrasound images to pregnant women, even if the women avert their eyes, which is permissible. The ACLU said the ultrasound law violates privacy and First Amendment rights. It said it’s still reviewing the 20-week abortion ban.

The Democratic attorney general weighed in on abortion measures that sped through the Republican-controlled legislature last week and were signed into law by GOP Gov. Matt Bevin. The two measures had emergency clauses and took effect after Bevin’s signature.

“While these decisions may not please advocates on either side, my duty is to the law,” Beshear said in a statement.

His decision to defend one but not both laws drew immediate criticism from Bevin and top Republican legislators.

“Our attorney general apparently is under the impression that he gets to pick and choose when he does his job,” Bevin said in a message on Facebook. “He was elected and is in fact being paid by you the taxpayers of Kentucky ... to defend the laws of the commonwealth.”

House Speaker Jeff Hoover and Senate President Robert Stivers aimed similar criticism at Beshear.

It wouldn’t be the first time an attorney general has drawn fire for backing away from defending a Kentucky law. Jack Conway, also a Democrat, did so during the legal fight over Kentucky’s gay-marriage ban. Conway decided he would not appeal a judge’s ruling forcing the state to recognize same-sex marriages from other states. Democratic Gov. Steve Beshear hired private attorneys to appeal the decision anyway.

Conway went on to run for governor, losing to Bevin in 2015. Steve Beshear is Andy Beshear’s father.

Andy Beshear didn’t mince words Tuesday in predicting the fate for the 20-week abortion ban if it’s tested in court.

“This law is clearly unconstitutional based on our review of numerous federal appellate rulings, which state that identical statues in other jurisdictions are illegal under numerous Supreme Court decisions,” the attorney general said.

Supporters of the 20-week ban seemed to anticipate a court challenge by creating a “litigation fund” for the state to use to defend the law. Republican Rep. Stan Lee said during a debate it was necessary because he did not believe Andy Beshear would defend the law if it’s challenged.

Bevin signaled Tuesday that his administration was willing to take up the defense of the 20-week ban if it’s challenge in court.

“We will defend the will of the people of Kentucky, even if we have to do it out of the executive branch,” he said.

On the ultrasound law, Beshear said he’ll defend any state officials named as defendants in the ACLU’s lawsuit who seek his representation. Beshear said it’s his duty to “defend laws where the constitutionality is questionable and finality is needed.”

“I will advise that this matter has risks and potential costs,” he said.

The disagreement over the abortion issue deepens the feud between Bevin and Beshear.

Beshear has sued the governor multiple times, seeking to block Bevin’s efforts to enact mid-year budget cuts on public colleges and universities and to abolish and replace the boards at the University of Louisville and the Kentucky Retirement Systems.