By Eric Dennison & Alex Bradshaw

The Kentucky State House has recently proposed a new bill that would outlaw abortion in the commonwealth.

House Bill 489, which was proposed by State Representative Addia Wuchner on February 1st at a Right to Life Rally, would ban all abortions performed in Kentucky. If the bill passes into law, it will make it a class C felony for doctors to perform an abortion. However, under federal jurisdiction, abortion is still legal due to the statute set by 1973’s landmark decision in Roe vs. Wade.

“Under the Constitution, State law is superseded by Federal law,” said U of L law professor Sam Marcoson. This means that even if the bill is passed in Kentucky, it would not be valid because federal law overrules it. In order for Roe v. Wade to be overturned, a federal case would have to be brought to the Supreme Court, and then declared a new statute. The Court would have to nullify and declare the old statute unconstitutional.

Other statutes have been overturned in the past such as Plessey v. Fergusson, which originally declared segregation legal, but was deemed unconstitutional in the Brown vs. Board decisions. Federal rights and precedents outweigh state laws and override all other state rights.

Marcoson guesses that the timing of this bill is due to the “genuine conviction” of many pro-life supporters along with the appointments of conservative Judges Samuel Alito and John Roberts changes to the Supreme Court. According to Marcoson, House Bill 489 would act as vehicle to overturn Roe vs. Wade.

Wuchner, a pro-life advocate, states on her Web site that when Roe v. Wade was originally decided, the information to make a correct decision was not there due to antiquated scientific information. Wushner herself could not be reached for comment, but her Web site states, “Through the knowledge gained from the advances of human biological sciences and medicine over the last thirty-years and the experience of women who have undergone abortion procedures, it is clear that the assumptions made concerning detriment of the women subject to the procedure by the Roe Court are incorrect.” Besides Wuchner, the bill is sponsored by 37 other Representatives.

Not all Representatives agree. “I believe that a woman is guaranteed to the right of privacy under the Constitution. There is nothing more private than a woman’s womb,” stated State Representative Kathy Stein, who opposes the bill.

House Bill 489 would declare that life occurs at the moment of fertilization and would include no exemption for cases of rape or incest. The only exception to the law would be if the pregnancy posed a risk to the woman’s life. According to Stein, the bill is out of touch with current medical definitions.

“Their position is based upon their religious position that life begins when the sperm penetrates the egg. They define that fertilized egg as life. They also believe that frozen embryos are human beings. A difficult position for them to find themselves in would be in a fertility clinic, with frozen embryos, and a flash fire breaks out. A toddler is present because of a lack of child care that day. The last person in the clinic can either rescue the frozen embryos or the toddler. Which to choose? Is an acorn an oak tree?” Stein stated.

The bill’s fate is still unclear, according to Marcoson. First, a statute has to be passed in order to challenge Roe, then the once it has passed, it has to be presented before the Supreme Court. This process could take a few years and the membership of the Court could be different by the time the case is heard. Marcoson believes that there are still not enough votes to overturn Roe v. Wade, but added that the court could become more conservative in the upcoming years.

Politicians and representatives in other states have proposed similar bills. South Dakota has already passed a similar bill that will immediately go into effect if Roe v. Wade is declared unconstitutional. Alabama, Georgia, Indiana, Mississippi, Missouri, Ohio, Rhode Island, South Carolina, Tennessee and West Virginia all have similar bills pending in their state houses.