Attorneys for New York state are adding their weight to a legal challenge in Kentucky against the state's recent restrictions on a commonly used abortion procedure during the second trimester of pregnancy, which is currently under review by a federal appellate court.

New York Attorney General Letitia James said Tuesday that attorneys from her office led an amicus brief in the case on behalf of 19 states before the U.S. Court of Appeals of the Sixth Circuit.

"Women have a constitutional right to safe, accessible abortion services, and no person, political party, or government entity can legally deny that right," James said. "Extremist laws that promote dangerous and invasive procedures have no place in this country."

The litigation was brought by the lone abortion clinic in Kentucky against a state law passed there in 2018 that restricted the standard dilation and evacuation abortion procedure, which is regularly used when a pregnancy is terminated during the second trimester.

The abortion clinic, EMW Women's Surgical Center in Louisville, Kentucky, is represented in the litigation by the American Civil Liberties Union.

The challenged law, included in House Bill 454 in Kentucky last year, was struck down in a decision handed down in May by U.S. District Judge Joseph McKinley Jr. of the Western District of Kentucky. Kentucky Gov. Matt Bevin, a Republican, appealed that decision to the Sixth Circuit.

McKinley, in his decision, wrote that the Kentucky law imposed an undue burden on women seeking an abortion because it essentially impeded access for women after 15 weeks of pregnancy with no purported benefit.

"Plaintiffs successfully showed that H.B. 454 operates as an undue burden on a woman's right to a second-trimester pre-viability abortion—an unconstitutional enactment under current precedent," McKinley wrote.

Attorneys for the Commonwealth of Kentucky had argued in the case that the law was intended to require doctors to cause fetal demise before the dilation and evacuation procedure, which they opposed for ethical reasons. The procedure, they argued, can require a fetus to be removed in parts before demise.

McKinley wrote in his decision that the methods proposed by attorneys for Kentucky were either not feasible, before the contested method, and could potentially be harmful. That created an undue burden for women seeking an abortion beyond 15 weeks, he wrote.

Attorneys for New York, and the other 18 states, urged the Sixth Circuit, in their brief Tuesday, to affirm McKinley's analysis of the Kentucky law.

"The district court correctly held here that the Act imposes an undue burden because it criminalizes the safest and most common form of second-trimester abortion after 15 weeks without ensuring that safe and medically accepted alternatives remain available to women who exercise their constitutional right to choose to terminate a pregnancy," they wrote.

The methods proposed by Kentucky for an abortion at that stage of a pregnancy exist, the states wrote, but they're either unavailable, experimental or ineffective. They would require physicians to first cause fetal demise, either through an injection or umbilical cord transection. Doctors would then be allowed to perform the dilation and evacuation abortion procedure.

Attorneys for New York said those methods aren't sufficiently safe, reliable or effective for women compared to how abortions are currently performed after 15 weeks. That would mean a de facto ban on abortion in Kentucky after that stage of a pregnancy, they argued, which would be unlawful.

"It is well settled that a ban on pre-viability abortions is unconstitutional," the states wrote. "At a minimum, the record evidence establishes substantial medical uncertainty about the safety and efficacy of Kentucky's proposed alternative methods."

The filing was partly in response to another brief from a different coalition of 16 states, led by Ohio, that urged the Sixth Circuit to instead reverse McKinley's decision and uphold the law.

That group of states rebuffed claims that Kentucky's proposed method of abortion would create an undue burden on women. They framed the change as a small one that would only require that doctors first cause fetal demise before the procedure to "promote a respect for life."

"True, a State law amounts to an undue burden on patients if it limits doctors to using infeasible or unsafe abortion methods," the states led by Ohio wrote. "But if the State's limit on a particular method leaves doctors legally free to perform alternatives that are both feasible and safe, then physicians cannot veto the state law by refusing to take up those alternatives."

In other words, the states argued that doctors would be free to choose whether to use the abortion methods proposed by Kentucky, but that those physicians didn't have the constitutional right to demand that the procedure be performed without the regulation.

Attorneys for New York responded to that point with an argument about the unique nature of abortion in Kentucky. There's only a handful of doctors who perform surgical abortions in Kentucky, the states wrote, and they've said they wouldn't use the proposed methods.

"The only physicians currently performing surgical abortions in Kentucky categorically refuse to subject their patients to the medically unnecessary risks associated with fetal demise measures and will therefore cease to perform abortions after 15 weeks if the Act is allowed to take effect," the states wrote.

New York was joined on the brief by California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington and the District of Columbia.

A representative for Bevin did not immediately respond to a request for comment on the amicus brief filed by New York.

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