Abortion could be prosecuted as criminal homicide under bill filed by Kentucky lawmaker

Illegal abortions in Kentucky could be prosecuted as murder under a new bill from a Louisville Republican.

Rep. Emily Callaway, R-Louisville, filed the “Prenatal Equal Protection Act” on Tuesday, which proposes that unlawful pregnancy termination “shall be subject to the same legal principles as would apply to the homicide of a person who had been born alive,” according to the bill language.

Criminal homicide under Kentucky law means a person is “guilty of causing the death of another human being under circumstances which constitute murder,” first and second degree manslaughter, or reckless homicide. Callaway’s House Bill 300 proposes broadening the definition of “human being” to also include an “unborn child.”

Abortion is already illegal and criminalized in Kentucky, except in cases where termination is necessary to save the life of a pregnant person – a too-narrow exception Kentucky providers have said harms pregnant patients and deprives them of medically-recommended care.

A trigger law banning abortion except in medical emergencies and a six-week ban on abortion took effect in June after the U.S. Supreme Court overturned federal abortion protections. Kentucky’s bans do not include exceptions for rape, incest, or for pregnant minors.

Kentucky’s current trigger law aims to prosecute doctors who provide unlawful abortions, while pregnant people who get an abortion are not subject to prosecution. But Callaway’s proposed bill would allow for pregnant people and their doctors to be prosecuted.

Callaway is a first-year representative, having beaten Democratic incumbent Rep. Jeff Donohue by 14 points in a South Louisville district that changed significantly after the GOP-led redistricting effort last year.

Exceptions under the bill include abortions necessary to “avert the death of the pregnant woman;” in cases of “spontaneous miscarriage;” or when abortion is provided only after “all reasonable alternatives to save the life of the unborn child are unavailable; or were attempted unsuccessfully before the performance of a medical procedure.”

The bill makes clear the Attorney General’s office would have concurrent jurisdiction over prosecuting this crime, along with county and commonwealth’s attorneys.

But Republican Attorney General Daniel Cameron, ardently supportive of Kentucky’s bans on abortion, was quick to criticize Callaway’s bill on Wednesday, saying it “strikes the wrong balance.”

“While I strongly support prohibiting abortions in Kentucky, I just as strongly support helping pregnant women,” Cameron said in a statement, calling on lawmakers not to support the bill. “Pregnant mothers deserve our help, support, and life-affirming options, not to face criminal charges.”

He touted Kentucky’s trigger law as one that “appropriately values the life of a pregnant woman and her unborn child, (because) it does not permit the prosecution of pregnant mothers.”

Kentucky, along with dozens of other states, already has fetal homicide laws on the books. Recognizing fetal personhood, the commonwealth’s laws dating back to 2004 make it a criminal offense to cause the death of an “unborn child.”

But not only do those laws only refer to perpetrators with “he” and “him” pronouns, the list of exceptions makes clear doctors who provide abortions to their consenting patients are not guilty of fetal homicide.

Since Roe v. Wade was overturned last summer, a handful of GOP-controlled states have floated bills to make abortion a crime of homicide. But even in states that have aggressively restricted abortion access, it’s a hard sell. A proposal in Louisiana last year that would’ve allowed women who get abortions and doctors who provide them to be charged with murder was withdrawn after a firestorm of opposition.

Callaway’s bill is ostensibly aimed at people who coerce pregnant people into getting abortions, even though it also carries punitive measures for pregnant people: “Pregnant mothers should be protected from being pressured to abort their children by repealing provisions that may otherwise allow a person to solicit, command, aid or counsel a mother to abort her child,” the bill reads.

It’s the second abortion-related bill in as many days filed by Republicans. Sen. Whitney Westerfield, R-Crofton, proposed on Tuesday asking voters whether they want to amend the Kentucky Constitution to make clear it does not contain a protected right to abortion. Voters rejected a near-identical proposal last November in Amendment 2.

Legislative leaders have expressed caution at passing any abortion-related laws until the Kentucky Supreme Court rules on the merits of a lawsuit from the state’s two outpatient abortion providers, challenging the constitutionality of the trigger law and six-week ban.

That ruling will have a bearing on whether or not either law is ultimately enforceable.

Though the GOP-controlled Legislature has made no moves to amend current abortion bans since both laws took effect seven months ago, House leadership on Wednesday morning said bills with exceptions would be filed in the coming days.

In a statement, House Speaker David Osborne’s office also distanced itself from Callaway’s proposal: “In the history of our Commonwealth, the Kentucky General Assembly has never passed a pro-life measure that did not take into consideration the necessity for any exceptions, nor has this House Majority Caucus ever contemplated doing so.”

While the Legislature waits for the high court to weigh in, “we continue to have legitimate discussions on future policy. As a result, we anticipate legislation will be filed in the coming days, including bills that will provide further exceptions,” Osborne said.

That case was heard before the previous court in November. But justices did not rule in time before two new justices joined their ranks in January.

This story will be updated.