Kentucky 2023 HB 300
The Prenatal Equal Protection Act
Overview
Filed by Kentucky State Representative Emily Callaway
Provides Equal Protection to Preborn Children
If we truly believe that a fetus is a person made in the image of God, then to be consistent with the Constitution and God’s word, the laws which protect human beings who are born must equally protect those who are not yet born.
“No state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, 14th Amendment.
“There are inconsistencies between Fourteenth Amendment status and the typical abortion statute. If the fetus is a person, why is the woman not a principal or an accomplice? If the fetus is a person, may the penalties be different?” Supreme Court of the United States. Roe v. Wade, 410 U.S. 113, 157-58 n. 54 (1973).
“So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets.” The Golden Rule. Matthew 7:12.
“You shall love your neighbor as yourself.” Mark 12:31.
“You shall not be partial in judgment.” Deuteronomy 1:17.
Does the bill criminalize women?
No. The bill criminalizes the act of knowingly and voluntarily causing the death of a preborn child.
To deter such conduct and to provide equal protection of the laws, the bill does prohibit everyone, including pregnant mothers, from engaging in the unlawful act of prenatal homicide.
Once the bill is passed and becomes effective, the justice system would determine on a case-by-case basis whether any report of suspected prenatal homicide would be investigated and prosecuted and for what charge, and whether anyone would be convicted and sentenced. This justice system includes:
Law enforcement
Prosecutors
Grand juries
Trial juries
Judges
Multiple appellate courts
The governor
All defendants would have the right to an attorney, the right to remain silent, and all other constitutionally required due process. The state would bear the burden of proving its case beyond a reasonable doubt.
Finally, before any sentence could be imposed upon any defendant, the people participating in that justice system process would be required to be in nearly unanimous agreement that the process and outcome were just.
FAQs
Didn’t the Human Life Protection Act (the “trigger bill”) already outlaw abortion in Kentucky?
Sadly, no. It only outlawed assisted abortions.
The Human Life Protection Act allows pregnant mothers to “self-manage” their own abortions. This also means that, up to a point, it remains legal for others to pressure pregnant mothers into aborting their babies.
Mothers in Kentucky are now obtaining abortion pills to perform DIY abortions at home.
The following video is from a pro-abortion service helping women obtain abortion pills.
Kentucky law allows mothers to obtain and use these abortion pills to kill their children. While the number of abortions being done like since Dobbs is still uncertain, there is reason to believe the number is very large.
According to the New York Times, “As states banned or restricted abortion this summer, the number of American women ordering abortion pills from overseas jumped significantly — enough to offset most of the drop in legal abortions.”
Would the bill prohibit IVF?
No. Fertility specialists may perform in vitro fertilization, but their procedures must not willfully destroy human beings. This would require a change in procedure for any IVF clinic where the current practice creates a large number of human embryos and then destroys the excess. You can learn more about this and other IVF issues here.
Would the bill ban contraceptives?
No. The bill does not ban contraceptives (i.e. drugs or devices to prevent fertilization). The bill would ban the use of abortifacients after fertilization if knowingly and willfully used to cause the death of the child.
Could anyone who has been involved with an abortion in the past be prosecuted?
No. Section 10 of the bill explicitly prohibits retroactive enforcement, as do the Kentucky and U.S. constitutions.
Could the bill punish women who have had miscarriages?
No. Nothing in the bill would in any way apply to accidental or natural deaths, and sections 3 and 5 further clarify that.
Could a mother forced into an abortion be convicted?
No. Section 7 explicitly provides that a mother forced into an abortion under duress is not subject to criminal liability. Instead, the bill would allow for prosecution of the person who forced her.
Would the bill allow doctors to deal with medical emergencies like ectopic pregnancies?
Yes. Sections 3 and 5 explicitly allow for that.
SECTION-BY-SECTION
Bill Preamble
While not legally binding, this preamble serves to describe some of the constitutional foundations of the bill as well as providing a general summary of its effects.
Bill Section 1
Every state already has existing laws making the willful killing of a person a crime. To provide preborn children the equal protection of those existing laws against homicide, this simply specifies that the terms “person” and “human being” include a preborn child.
This also defines the term “spontaneous miscarriage” as “the natural or accidental termination of a pregnancy and the expulsion of the unborn child.” Other sections of the bill specify that the bill does not apply to miscarriages.
Bill Section 2
This makes clear that all existing due process protections for those accused of homicide of a born person would also apply to those accused of homicide of an unborn person, such as:
Presumption of Innocence. A person is presumed innocent until the state proves beyond a reasonable doubt that the person is guilty.
Mistake of Fact Defense. A person who misunderstands a material fact of what they are doing is not guilty if such mistake negates the existence of the mental state required by the offense.
Duress Defense. A person who commits a criminal act under threat of serious physical violence or death is not guilty. See Section 7.
Laws of Parties. Everyone willfully involved with the homicide can be prosecuted, including an abortionist and anyone who pressures the mother into the abortion.
Immunities. For example, prosecutors could grant immunity to mothers to testify against the abortionist or others.
Clemencies. The governor can exercise executive clemency/mercy and commute/reduce the sentence of or completely pardon a person, even if the person had been lawfully convicted and sentenced (Constitution of Kentucky § 77).
Bill Section 3
Subsection (1).
Medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant female that results in the accidental or unintentional injury or death of her unborn child is not a crime when all reasonable alternatives to save the life of the unborn child were attempted or none were unavailable.
This provision is consistent with the Dublin Declaration.
Subsection (2).
This clarifies that no one can be prosecuted for an accidental miscarriage, though the bill would not apply to one regardless.
Bill Sections 4, 5, and 6
These are substantively identical to sections 1, 2, and 3 related to homicide, but they relate to assault.
Bill Section 7
A mother forced into an abortion by someone using or threatening serious physical violence is not guilty.
Bill Section 8
This gives the state attorney general concurrent jurisdiction to prosecute in case local prosecutors refuse to enforce the law. There is precedent for this in Kentucky (See K.R.S. §§ 15.190—15.243).
Bill Section 9
This is merely statutory clean-up based on the changes made by Section 10.
Bill Section 10
This repeals the Penal Code chapter relating to fetal homicide (507A) because it does not provide equal protection of the laws. All of the prohibitions of that chapter are, at best, unnecessary and redundant of the provisions of the Homicide chapter (507).
Bill Section 11
This makes it extremely clear that the bill cannot be used to retroactively prosecute people for abortions that took place in the past.
Retroactive prosecution would also violate Article I, Section 9, Clause 3 of the U.S. Constitution, as well as Section 19, Subsection (1) of the Kentucky Constitution.
Bill Section 12
This provides that other abortion regulations and any exceptions to them do not limit or otherwise govern enforcement of the criminal homicide and assault provisions to protect prenatal persons.
Bill Section 13
This provides a short title for the bill, the Prenatal Equal Protection Act.