Request By:
Representative Gerta Bendl, Chairman
House Standing Committee on Health
and Welfare
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; John H. Gray, Assistant Attorney General
I am in receipt of your letter requesting an opinion on the constitutionality of 82 House Bill 339, which would amend those Sections of the Kentucky Revised Statutes dealing with abortion (KRS 311.710-311.990).
Specifically your letter draws attention to Section 2(6) which defines "human being" and Section 3 which allows only "necessary" abortions.
Section 2(6) defines "human being" as any member of the species homo sapiens from fertilization until death. Your letter suggests that this definition may present possible First Amendment problems.
The First Amendment of the United States Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The United States Supreme Court has held that the word "person" as used in the Fourteenth Amendment does not include the unborn.
Roe v. Wade, 93 S. Ct. 705, 729 (1973). By analogy, this office is of the opinion that the use of the word "people" in the First Amendment of the United States Constitution also does not include the unborn. Since the rights granted by the First Amendment are not rights that the unborn could take advantage of, it seems only logical that the word "people" as used in the First Amendment does not include the unborn.
As a more general matter, this office also sees problems with Section 2(6)'s definition of "human being" because it is in conflict with the common law which has historically declined to recognize the unborn as persons in the whole sense.
Roe v. Wade, at 731.
Your letter next mentions Section 3 of 82 House Bill 339. Section 3 states in major part that no abortion may be performed except by a physician after he determines, that in his best clinical judgment, the abortion is necessary. Section 3 also requires the physician to describe the basis for his best clinical judgment that the abortion is necessary. It is the opinion of this office that Section 3 is unconstitutional because:
1. It interferes with a woman's right to have a first trimester abortion free from state interference.
Roe v. Wade, at 732.
2. The requirement that the physician describe the basis for his clinical judgment that the abortion is necessary, interferes with the physician-client relationship and would have a chilling effect on a physician's decision to perform an abortion.
Planned Parenthood of Central Missouri v. Danforth, 96 S. Ct. 2831 (1976).
Your letter draws attention to the use in Section 3 of the word "necessary." In the case of
Doe v. Bolton, 93 S. Ct. 739 (1973), Georgia had a statute that made it a crime for a physician to perform an abortion except when "based on his best clinical judgment . . . an abortion is necessary." In deciding Doe v. Bolton, the United States Supreme Court rejected the argument that the use of "necessary" was unconstitutionally vague. As said by the Court:
The vagueness argument is set at rest by the decision in
United States v. Vuitch, 402 U.S. 62, 71-72, 91 S. Ct. 1294, 1298-1299, 28 L. Ed. 2d 601 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal "unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine." That statute has been construed to bear upon psychological as well as physical well-being. This being so, the Court concluded that the term "health" presented no problem of vagueness. "Indeed, where a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." Id., at 72, 91 S. Ct. at 1299. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely.
In light of the Supreme Court's ruling in Doe v. Bolton, Section 3's use of the word "necessary" appears to be constitutionally sound.
In addition to the constitutional problems already discussed, this office is of the further opinion that the following proposed amendments are also unconstitutional for the reasons discussed below:
1. Section 2(8), which defines "viability," does not reflect that the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.
Colautti v. Franklin, 99 S. Ct. 675, 439 U.S. 379, 58 L. Ed. 2d 596 (1979).
2. Section 4, which deals with the voluntary and informed consent of the pregnant woman appears unconstitutional as certain subsections appear to impose an extra burden of regulation on the abortion decision.
Planned Parenthood of Central Missouri v. Danforth, supra. The objectionable sections are Sections 4(2)(d) and 4(2)(e). Since the decision of whether or not to have an abortion is a private decision to be made by the woman concerned, with the advice of her physician, the requirement that the woman be provided with information published by the Department for Human Resources, which lists agencies and services available to assist a woman through pregnancy and the requirement that the woman be informed that the Commonwealth strongly urges the woman to contact one of these agencies prior to making a final decision, places an extra state imposed burden of regulation on the abortion decision. This is especially true since the required information has no reasonable relation to the preservation and protection of maternal health.
3. Section 7, which deals with spousal notification appears to be an unconstitutional interference with a woman's right to an abortion because: (1) the state seemingly has no compelling interest in having the spouse notified; and (2) the requirement that the spouse be notified does not seem reasonably related to the purpose of preservation and protection of maternal health.
Rowe v. Wade, supra;
Planned Parenthood of Central Missouri v. Danforth, supra.
4. Section 8, which deals with record keeping also appears to be unconstitutional in that certain items of information required by this section do not appear to be related to the state's interest of preserving maternal health and life and the monitoring of abortions to assure that they are done in accordance with the law. In addition, this information, if required, would impose extra burdens on the abortion decision and would interfere with the client-physician relationship.
Planned Parenthood of Central Missouri v. Danforth, supra.
It is hoped that this letter has adequately answered your questions.