Cabinet for Human Resources v. Women's Health Services, Inc. , 1994 Ky. App. LEXIS 72 ( 1994 )

McDONALD, Judge,

concurring by separate opinion.

I join in the full text of Judge Howerton’s majority opinion, but write additionally from the perspective that the issue needs further comment.

Abortionist Banehongmanie argues that he, under law, is permitted to practice his business of exterminating unborn children without government’s interference in the privacy of his office and without a certificate of need from the state licensure agency. He claims to have performed thousands of abortions. Banehongmanie nonchalantly treats the procedure involved on par with removing a wart, when in fact the procedure causes a death.

In Banchongmanie’s brief before this Court, he states that the Commonwealth is attempting to overrule Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Such argument is absurd because the Commonwealth as a “several” state has no power to overrule Roe v. Wade, supra, a case emanating from our U.S. Supreme Court.

It is my belief though that eventually the majority opinion of Roe will be buried as an atrocity and rightfully recognized as one of the most immoral laws of humankind, comparable to the holding in Dred Scott v. John Sandford, 60 U.S. 393, 19 Howard 393, 15 L.Ed. 691 (1856), and the 1935 Nurenberg Laws of the German Third Reich.

In Scott v. Sandford, our U.S. Supreme Court when addressing the personhood of African Americans said that constitutionally they are “... beings of an inferior or-der_” Constitutionally, African Americans will be treated as “an ordinary article of merchandise and traffic-” Id. at 60 U.S. at 407.

Under the German Third Reich, its Reichstag passed the 1935 Nurenberg Laws which, under Article 2 of the Enabling Act for purposes of racial hygiene, referred to the personhood of Jews as sub-human, an “inferior race,” so as to prevent racial defilement of German blood.

The law created in Scott and the Nuren-berg Laws at least granted some status to the persons involved, repugnant as it was. African Americans were classified not as citizens but as property, and Jews were reduced to a condition of being not quite human. In Roe, the personhood of the unborn child is relatively ignored.

Athough our law permits a mother to take the life of her unborn child, it should not be done totally without safeguards, due process or provision for a guardian-ad-litem. I note that, under KRS 205.510(3), the status of an “unborn child” is recognized, and in the case of Rice v. Rizk, Ky., 453 S.W.2d 732 (1970), “a viable fetus is a person ...” within the meaning of the law. Accepting what has just been established then, abortions without regulation are no more legal and safe than are lynchings.

In my opinion, for an abortionist to carry out infanticidal procedures in his private office without a certificate of need is contrary to applicable and reasonable regulation.

The Cabinet for Human Resources is entitled to a trial on the merits of the application for permanent injunction as determined by the majority opinion.