Request By:
Hon. Ronald M. Sullivan
Attorney at Law
100 St. Ann Building
Post Office Box 727
Owensboro, Kentucky 42302
Opinion
Opinion By: David L. Armstrong, Attorney General; Mary-James Young, Assistant Attorney General
On behalf of the Owensboro-Daviess County Hospital, you have submitted a request for an Attorney General's Opinion on the constitutionality of Kentucky Revised Statute 311.800(1), which states that "No publicly owned hospital or other publicly owned health care facility shall perform or permit the performance of abortions, except to save the life of the pregnant woman. "
An earlier version of the statute, enacted by the General Assembly in 1974, was held unconstitutional as applied to public hospitals by the
United States Sixth Circuit Court of Appeals in Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976). That version stated that "No hospital or other health care facility shall be required to, or held liable for refusal to, perform or permit the performance of abortion contrary to its stated ethical policy." There, the Court held that as applied to public hospitals, the statute circumvented if not directly contravened
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 123 (1973). The Sixth Circuit held in Wolfe, supra, that the state cannot constitutionally authorize public hospitals to refuse to perform abortions for "ethical" reasons. Wolfe at 527, note 6.
The Supreme Court has identified only two interests which may justify regulation of abortions: protection of fetal life and protection of maternal health. These interests have been strictly limited. A state may interfere with the woman's abortion decision no sooner than the second trimester of a pregnancy and then only to protect maternal health. In the post-viability stage, the state may interfere to protect both maternal health and fetal life.
Roe v. Wade, 410 U.S. 113 at 164-165, 93 S. Ct. 705, 35 L. Ed. 2d 201 (1973);
City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983).
The current provision in KRS 311.800(1) which prevents abortions in public hospitals at any time "except to save the life of the pregnant woman, " exceeds the bounds set by the Court in Roe for state interference in a woman's abortion decision. Only at the beginning of the second trimester of a pregnancy does the state's interest in maternal health become sufficiently compelling to justify "significant regulation of abortion. " Akron at 76 L. Ed. 2d at 702, note 11. KRS 311.800(1), which prohibits the performance of abortions at public hospitals during even the first trimester of a pregnancy, is invalid under the Court's decisions in Roe, supra, Akron, supra and
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., 106 S. Ct., 90 L. Ed. 2d 779 (1986). See also
Nyberg v. City of Virginia, 667 F.2d 754 (8th Cir. 1982). (City could not constitutionally prohibit staff physicians from performing abortions for paying patients at sole hospital in the community).
Poelker v. Doe, 432 U.S. 519, 97 S. Ct. 2391, 432 L. Ed. 2d 528 (1977), which was mentioned in your letter as possible precedent in support of the constitutional validity of KRS 311.800(1), does not address the constitutional questions raised by Kentucky's statute. Poelker dealt only with a city's policy decision to provide only publicly-financed hospital services for childbirth and to not provide such services for performance of abortions. KRS 311.800(1) does not prohibit only publicly-financed abortions at public hospitals; rather, it prohibits all abortions at public hospitals except those to save the life of a pregnant woman.
In conclusion, it is our opinion that the applicable case law compels a determination that KRS 311.800(1), which prohibits the performance of abortions in public hospitals or public health care facilities except to save the life of the pregnant woman, is constitutionally invalid.