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Biased Counseling & Mandatory Delay

Kentucky has a partially unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after a physician, nurse, physician's assistant, or social worker orally tells her:  (1) the probable gestational age of the fetus; (2) the nature of the proposed procedure, its risks, and alternatives; and (3) the medical risks of carrying a pregnancy to term.

In addition, at least 24 hours prior to an abortion she must receive a state-mandated lecture by a physician, nurse, physician's assistant, or social worker, individually and in a private setting, that includes:  (1) she has a right to review state-prepared materials; (2) medical assistance may be available for prenatal care, childbirth, and neonatal care; and (3) the "father" of the fetus is liable for child support even if he offered to pay for an abortion.

At least 24 hours prior to an abortion, the woman must be given, if she chooses to view them, state-prepared materials that must include:  (1) the probable anatomical and physiological characteristics of the fetus at two-week gestational increments for the first 16 weeks of pregnancy and at four-week increments from the 17th week to full term, including pictures or photographs; (2) information about public and private agencies and services, including but not limited to adoption, available assistance during pregnancy, upon childbirth, and while a child is dependent, including a comprehensive list of such agencies; and (3) information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the father's liability for child support.

Ky. Rev. Stat. Ann. § 311.725 (Enacted 1998).

Although a court held that this law is constitutional, Eubanks v. Schmidt, 126 F.Supp.2d 451 (W.D. Ky. 2000), an order prohibits the state from enforcing the law to require in-person receipt of the state-mandated information and materials.  Eubanks v. Schmidt, No. 01CI01440 (Ky. Cir. Ct. Jefferson County Jan. 11, 2002) (agreed order).  The Kentucky Board of Medical Licensure has interpreted this law to allow telephone counseling and mail receipt of the state-prepared materials.  Letter from Danny Clark, President, Ky. Bd. of Med. Licensure, to Cynthia Blevins Doll (Oct. 1, 2001).

The state-prepared materials include enlarged color photographs of fetuses.  Cabinet For Health Services, Kentucky Dep't Of Public Health, Information About Fetal Development (undated).

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