by Deborah Yetter, Louisville Courier Journal

FRANKFORT, Ky. – Emboldened by two conservative justices added to the U.S. Supreme Court in the past two years, a top Republican legislator believes Kentucky could be at the forefront of an effort to end legalized abortion nationwide.

“I would be proud if it’s Kentucky that takes it up to the Supreme Court and we change Roe v. Wade,”  said Sen. Damon Thayer, Republican majority leader in the Kentucky Senate.

Such a feat would be “the pinnacle of my career,” Thayer said.

Roe v. Wade is the landmark 1973 case that established a woman’s legal right to an abortion.

Undeterred by costs of litigation, lawmakers say Kentucky will push forward with a “fetal heartbeat” bill certain to face an immediate legal challenge if enacted.

Senate Bill 9 bans abortion once a fetal heartbeat is detected, around six weeks into a pregnancy, which opponents say amounts to an unconstitutional ban on abortion.

Similar measures also are under consideration in about half a dozen other states.

In Kentucky, with Republican majorities in both chambers, and the support of some Democrats as well as Gov. Matt Bevin, an anti-abortion Republican, supporters say they anticipate quick approval of the fetal heartbeat bill, which has an emergency clause that would allow it to take effect immediately.

Such measures are deliberate, said Brigitte Amiri, deputy director of the American Civil Liberties Union Reproductive Freedom Project.

“This is to take a direct challenge of Roe v. Wade to the Supreme Court in light of changes to the Supreme Court,” said Amiri, whose organization has vowed to challenge such laws.

It puts Kentucky among several other states seeking to pass such laws, encouraged by the appointments of justices Neil Gorsuch in April 2017 and Brett Kavanaugh in October 2018. The court is now viewed as having a solid 5-4 conservative majority.

“It seems that conservatives are emboldened with the addition of Justice Kavanaugh added to Supreme Court, and this has set up a flurry of bills that would ban abortion,” said Elizabeth Nash, a policy analyst for the Guttmacher Institute, a reproductive health organization that supports abortion rights.

Such hopes may be misplaced, according to James Bopp Jr., a prominent conservative lawyer based in Terre Haute, Indiana, who regularly tries cases before the Supreme Court and who served as general counsel to National Right to Life, a leading opponent of abortion.

“With Justice Kavanaugh’s recent confirmation, pro-life groups gain a renewed confidence that Roe could be overturned, but this is not guaranteed,” Bopp and associate Corrine Youngs wrote in an Oct. 19 memo to Indiana’s Right to Life legislative committee.

The memo notes that of the nine Supreme Court justices, only Clarence Thomas has stated in a judicial opinion that Roe v. Wade should be overturned and that a “major obstacle” is the general reluctance of the high court to overturn cases it already has decided.

Still, other states continue to enact such laws.

Ohio state Rep. Candice Keller, a Republican from Middletown, said she has introduced a fetal heartbeat bill for the 2019 legislative session and said incoming Republican Gov. Mike DeWine has pledged to sign it.

Ohio passed a fetal heartbeat bill last year, only to have it vetoed by outgoing Republican Gov. John Kasich, citing the expense of litigation to defend the law.

Several other states, including Iowa, North Dakota and Arkansas, have enacted such  legislation in previous years. Federal courts struck down the laws in Arkansas and North Dakota.

That leaves Iowa as the only state with a fetal heartbeat bill enacted into law, but it remains suspended under a pending court challenge.

Keller said supporters have tried for years to enact such a law in Ohio. She said she’s encouraged by the increase in conservative justices on the Supreme Court, calling it “an exciting time to be part of the pro-life movement.”

And while it’s not necessarily her goal to be the first state to challenge Roe v. Wade, Keller said she thinks the Supreme Court is bound to notice as more states approve such laws.

“We want to get the attention of the Supreme Court so they will think, ‘Perhaps we should look at this law again,'” she said.

The Supreme Court has consistently ruled that states may not ban abortion before fetal viability, the point at which a fetus could survive outside the womb, considered to be about 24 weeks.

Opponents of fetal heartbeat bills and similar measures to ban or curtail abortion say it does appear to be a growing national trend that will prove harmful to women.

“It’s part of a national strategy to eliminate all access to abortion,” said Kate Miller, advocacy director for the ACLU of Kentucky.

Tamarra Wieder, public affairs director of Planned Parenthood of Indiana and Kentucky, said Kentucky lawmakers “are racing to make Kentucky the first state in the nation without abortion access.”

Nash, with the Guttmacher Institute, said that’s likely the point of such bills.

But she said it’s hard to predict which cases might get to the Supreme Court first because they must wind their way through various challenges at the district and appellate federal court levels.

Meanwhile, Bopp in the memo to Indiana Right to Life, urges abortion opponents to set “realistic goals” for legislation and to avoid “problematic” legislation such as fetal heartbeat bills that would be found unconstitutional by current legal standards.

“This is so well-established that no judge in the country will find this legislation constitutional,” the memo said.

Further, it noted, if such laws are struck down, the opponents who filed the challenges are likely to be awarded costs and legal fees.

“This effort will have enriched the pro-abortion forces for no gain for the pro-life movement,” the Bopp memo said.

Kentucky has lost challenges to two abortion laws in the past 15 months and is awaiting a decision from a federal judge in a challenge to a 2018 law to ban an abortion procedure generally used after about 14 weeks.

Federal judges struck down a 2016 law requiring physicians to perform an ultrasound and attempt to describe it and show it to the patient prior to an abortion, as well as a 1998 law requiring abortion clinics to have signed agreements with a hospital and an ambulance service.

The state has appealed both cases.

Kentucky is facing a potential bill of $1.5 million in legal fees and expenses after the ACLU and other lawyers for Planned Parenthood of Indiana and Kentucky and EMW Women’s Surgical Center successfully challenged the 1998 law. The Bevin administration had used the law to try to close EMW, the state’s only abortion clinic, saying its agreements with an ambulance service and hospital were insufficient.

Thayer said that Kentucky lawmakers will press ahead to pass Kentucky’s fetal heartbeat bill and that he is not concerned about potential legal costs.

“I don’t think you can put a price on the life of the unborn,” he said.

Anticipating that the Supreme Court will overturn Roe v. Wade, Rep. Joe Fischer, a Fort Thomas Republican who has filed anti-abortion legislation for the past two decades, this year filed a bill that would ban abortion outright in Kentucky should that happen.

Meanwhile, he said, abortion opponents must not be discouraged by adverse court decisions, calling on the public to pray for President Donald Trump, who nominates federal judges, and Kentucky Sen. Mitch McConnell, the Senate Republican majority leader who controls the flow of judicial candidates for confirmation.

Fischer joined about 30 legislators Thursday at a news conference of the “pro-life caucus” to urge support for anti-abortion legislation.

“As we continue with this great battle, let us pray for Sen. McConnell and President Trump to bolster our federal judiciary with men and women who will reverse the ruling in Roe v. Wade and restore the commonwealth’s ability to end abortion in our lifetime,” he said.

Deborah Yetter: 502-582-4228; [email protected]; Twitter: @d_yetter. Support strong local journalism by subscribing today: courier-journal.com/deborahy.