The U.S. Sixth Circuit Court of Appeals Tuesday overturned Kentucky’s ban on a common second-term abortion procedure, although the judges differed greatly in how they described it.
The appeals court, in a 2-1 ruling, affirmed a lower court decision that found the law unconstitutionally placed an “undue burden” on a pregnant woman.
The law, HB 454, banned a procedure that doctors call “dilation and evacuation” (D&E) but pro-lifers label “dismemberment abortion.” It involves dismembering “the living unborn child” and extracting “portions, pieces, or limbs of the unborn child from the uterus,” according to the law’s text.
The court’s majority said a D&E abortion takes place when “physician first dilates the patient’s cervix and then uses instruments and suction to remove the contents of the uterus.” Because the “fetus has grown larger than the cervical opening,” the “fetal tissue separates as the physician draws it through that narrow opening.”
But Judge John K. Bush, in his dissent, described the procedure in gruesome detail, saying he understands why some pregnant women would want the fetus’ heart to be stopped before the procedure begins.
“Dr. Anthony Levantino testified that in a D&E procedure, the ‘[f]etus dies from dismemberment from literally having arms and legs pulled off’; ‘[it] bleed[s] to death,’” Bush wrote. “Another physician, Dr. David Berry, described a D&E procedure in which the doctor ‘pulled out a spine and some mangled ribs and the heart was actually still beating.’
“... It is not difficult to understand why a majority of women would want the heart to stop beating before the fetus undergoes such an ordeal. As the Supreme Court has recognized, ‘No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life.’ This is because ‘[t]he fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb,’” Bush wrote, quoting a 2000 decision by former Supreme Court Justice Anthony Kennedy.
Bush added, “[A] woman, even after hearing of the health risks involved, might opt for fetal demise simply to be assured that the fetus was not alive when its limbs were torn apart.”
Bush was nominated by President Trump. The two judges who voted in the majority, Judges Eric L. Clay and Gilbert S. Merritt, were nominated by Presidents Clinton and Carter, respectively.
Photo courtesy: ©Getty Images/Kagenmi
Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.