Request By:
Harold B. McGuffey, Commissioner
Department of Insurance
Commonwealth of Kentucky
Capital Plaza Tower
Second Floor
Frankfort, Kentucky
40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David K. Martin, Assistant Attorney General; By: Dale D. Brodkey, Legal Intern
This letter is in response to your inquiry of September 13, 1978, for a legal definition of abortion as used in House Bill 299, enacted by the Kentucky General Assembly in 1978. This Act amends KRS 304.5 of the insurance code by adding a new section, KRS 304.5-160, which provides in part:
(1) No health insurance contracts, plans or policies delivered or issued for delivery in the state shall provide coverage for elective abortions except by an optional rider for which there must be paid an additional premium. For purposes of this section, an "elective abortion" means an abortion for any reason other than to preserve the life of the female upon whom the abortion is performed.
Although this statute defines elective abortion, it does not define abortion. However, abortion is defined in KRS 311.720, which states:
As used in KRS 311.730 to 311.810 and laws of the Commonwealth unless the context otherwise requires:
(1) "Abortion" shall mean an act, procedure, device or prescription administered or prescribed for a pregnant woman by any person, including the pregnant woman herself producing the premature expulsion of the fetus, except that in cases in which the unborn child's viability is threatened by continuation of the pregnancy, early delivery after viability by commonly accepted obstetrical practices shall not be construed as an abortion for the purpose of KRS 311.730 to 311.810.
It would seem that this definition of abortion can be applied to House Bill 299 since KRS 311.720 states that the definitions are to be used in the "laws of the Commonwealth unless the context otherwise requires." There is no reason to think that the context of House Bill 299, dealing with insurance contracts, would necessitate another definition.
However, KRS 311.720 appears to be internally inconsistent. It begins by stating that the definitions apply to KRS 311.730 to 311.810 and the laws of the Commonwealth, but the exception in KRS 311.720(1) only applies to KRS 311.730 to 311.810. Reading KRS 311.720(1) literally, it would appear that this definition of abortion, when applied to House Bill 299, would exclude the exception written into the second half of the sentence, which specifically relates only to KRS 311.730 to 311.810. This exception in essence states that premature deliveries of viable fetuses are not considered abortions "for the purposes of KRS 311.730 to 311.810."
A difficulty then arises in the application of KRS 311.720 (1) to House Bill 299. If the exception only applies to Chapter 311 of the Kentucky Revised Statutes and not to other "laws of the Commonwealth," then one could interpret the definition of abortion when it is applied to other Kentucky laws as including premature deliveries. This application does not make much sense, and it is questionable that the General Assembly would have drafted a statute which would imply that premature deliveries are to be considered abortions except under the given sections of Chapter 311.
It is a rule of statutory construction that "a statute must not be interpreted so as to bring about an absurd or unreasonable result."
George v. Alcoholic Beverage Control Board, 421 S.W.2d. 569, at 571 (Ky., 1967). Thus, for all Kentucky laws where the context fits (and abortion is not otherwise defined) and not just for Chapter 311, it would seem more reasonable that abortions are not to include premature deliveries.
This view is supported when one looks at the legislative history of the 1974 Act from which the sections of KRS Chapter 311 come. According to KRS 446.130, where one finds a case "of conflict between two or more sections or of a latent or patent ambiguity in a section, reference may be had to the Acts of the General Assembly from which the sections are indicated to have been derived." See
Burke v. Stephenson, 305 S.W.2d 926 (Ky., 1957), which states that for an ambiguous statute "reference may be had to legislative history for the purpose of resolving the ambiguity." (At p. 928).
Senate Bill 259, "relating to the regulation of abortion, " (Chapter 255 of the Acts of the General Assembly, 1974) included not just the sections in Chapter 311, but also related sections and amendments in chapters 199, 211, 213, and 436. The definition of abortion as written in this Act states that the exception for premature deliveries is "not to be construed as an abortion for the purposes of this Act." Senate Bill 259, § 2(1). Thus, the exception applies not only to KRS 311.710 to 311.810, but to all of these other sections dealing with abortions. This would seem to indicate that it was the legislature's intent to use this definition of abortion, including the exception for premature births, as the general definition wherever it was statutorily used unless the context would require another definition.
Since House Bill 299 of the 1978 Acts does not include a definition of abortion, but of elective abortion which incorporates the term "abortion, " it seems logical that the legislature was assuming the definition of abortion already in use in a number of its statutes.
One may conclude, then, that the entire definition of abortion in KRS 311.720(1), including the exception, can be utilized in House Bill 299.
If this office can be of further assistance to you concerning this matter, feel free to contact us.