Heather Hyden fought back tears as she spoke before Kentucky Senate committee members last Wednesday, pleading with the lawmakers for more time. The legislation under consideration at the hearing would ban abortion care after 20 weeks of pregnancy, and for Hyden there was more than politics at stake.
Hyden, at 14 weeks pregnant, was still weighing options with her doctor after prenatal testing had detected possible abnormalities with the fetus. The bill being considered by the committee would have a direct impact on what choices would be available to her as her pregnancy progressed.
Hyden told Rewire that she thought it astonishing that 138 legislators in Frankfort would feel entitled to determine which health-care options would be available to women and families. “There’s the physical science of being pregnant, but now we have to worry about the political science of being pregnant,” Hyden said.
The bill under consideration at the January 4 state senate hearing, SB 5, prohibits a doctor from performing or inducing an abortion when the fetus is at 20 weeks or more. The bill includes an exception for cases of medical emergency, but no exception for cases of rape or incest, nor for fetal abnormality.
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Kentucky’s lawmakers moved the bill rapidly through the GOP-held legislature, despite the testimony of Hyden and others about the impact the law would have on Kentucky women and families.
After the senate committee hearing, SB 5 was passed by the senate on January 5 with a bipartisan vote of 30-6. Following a house committee hearing on January 7, a rare Saturday legislative session, the measure passed in a bipartisan vote of 79-15.
Gov. Matt Bevin (R) on Monday signed SB 5 into law.
Kate Miller, advocacy director of ACLU of Kentucky, told Rewire that during her eight years of working with the Kentucky legislature, she has never seen lawmakers advance a bill with such swiftness.
“This is definitely out of the ordinary for Kentucky …. I’ve never seen anything like this,” Miller said. “This has been really inconsistent with previous practices.”
Kentucky joined 19 other states that have enacted 20-week abortion bans with varying exceptions. Twenty-week bans have been found unconstitutional by the courts, and similar Republican-backed laws in Arizona, Georgia, and Idaho have been struck down.
Bills passed by the Kentucky legislature and signed by the governor typically become law 90 days after adjournment. SB 5, however, was designated an “emergency” bill, meaning the new law became effective immediately when it was signed by the governor.
Hyden told Rewire that since Bevin signed the bill into law she does not feel like she has the time she needs to make a difficult decision. “It’s just very precarious,” Hyden said. “I just feel like my body is being held hostage right now.”
Even before the bill was debated by the legislature, Hyden said that she felt enormous pressure because of the truncated timeline that she and her physician had for making a medical diagnosis and determining the available medical options.
EMW Surgical Center in Louisville, which offers abortion care services up to 22 weeks of pregnancy, is the state’s only licensed abortion clinic.
The state’s Cabinet for Health and Family Services, under the leadership of the virulently anti-choice Bevin, claimed in March that the the EMW Women’s Clinic in Lexington did not have a license to operate, forcing the clinic to close. The Kentucky Supreme Court in August upheld the Cabinet’s decision.
“[The doctors] are trying to come up with an actual prognosis of why this is occurring in the fetus, and what kind of testing can we do within the allotted timeline that will help make this decision easier,” Hyden said. “It changes the conversation completely.”
Hyden said that she was “just floored” when she and her partner, Jimmy, found out that that there were complications with her pregnancy. She had an abnormal ultrasound when she was nine and a half weeks pregnant; a fetal abnormality was diagnosed at eleven and a half weeks.
Hyden said if the fetus was not viable she did not want to have to go through a “traumatic experience” that could be very costly both to her health and to her family’s financial stability. “There’s so much that can happen four months down the road,” Hyden said.
While Hyden and her family were going through this ordeal, newly emboldened Kentucky Republicans introduced SB 5 and other anti-choice proposals.
Hyden said that she was compelled to testify against SB 5 because she felt a sense of responsibility to speak up for other pregnant people in Kentucky whose voices were not being considered by lawmakers.
“We wanted the legislators to understand the medical realities and the implications of this bill,” Hyden said.
Hyden testified on Wednesday before the Kentucky Senate veterans, military affairs, and public protection committee, and again before the house health and family services committee on Friday.
“The reality is, though, that not only do we now face the increasing possibility of losing our baby, but now we must be here giving this testimony to our lawmakers, adding yet more unhealthy stress to a terribly difficult and frightening situation which is also very unhealthy to the pregnancy,” Hyden said during the senate committee hearing.
“Had we not, going through these last few weeks, the many ultrasounds and the battery of tests trying to maintain hope through all the difficult news that we have received, we would not understand how crucial it is to have as much time as necessary to make this decision,” Hyden continued.
Hyden could feel the senators giving her “eyes of empathy,” she told Rewire, but she felt they were feigning compassion for her circumstance. “I just knew that it was really shallow,” Hyden said.
Supporters of SB 5 appeared before the committee following Hyden’s testimony and that of other reproductive rights advocates.
Richard Nelson, executive director of the Commonwealth Policy Center, cited so-called fetal pain as justification for the bill during his testimony before the committee. “It is humane legislation based on good science,” Nelson said. “Medical experts tell us that the unborn feel pain around 20 weeks in utero.”
The anti-choice myth that fetuses can feel pain at 20 weeks has been discredited by medical professionals.
“If you’ve read this bill then you realize that in the case of a medical emergency with a child, this bill would not affect you,” Smith said. “This would not affect you if you are having a medical emergency as you described.”
Seated directly behind Smith during his testimony, Hyden shook her head and appeared dismayed by the lawmaker’s comments.
Despite Smith’s assurances, the bill limits its “medical emergency” exception to cases where abortion is necessary to prevent the death of the pregnant patient or to avoid serious risk that a major bodily function of the pregnant patient is substantially and irreversibly impaired.
The physician providing abortion care in such a case would need to comply with each of several requirements outlined in the bill, including a requirement that the procedure be performed in a hospital or health-care facility with appropriate neonatal services for premature infants.
Only two hospitals in the state, Norton Women’s and Children’s Hospital in Louisville and the University of Kentucky Hospital in Lexington, are certified to provide Level IV special care neonatal services.
Hyden told Rewire that Smith’s testimony was full of “garbage science,” and that it was upsetting to watch his testimony when there was a woman going through a traumatic experience right behind him.
“I can’t believe that they would put a fetus that is considered to be unviable outside of the womb ahead of the health of a perfectly healthy woman,” Hyden said. “Why would you want to risk her life for a fetus that is going to be born dead?”