U.S. Court of Appeals ruling upholds Kentucky abortion law that lower court struck down

Oct. 17--A U.S. Court of Appeals panel has upheld a Kentucky law that requires abortion clinics to have transfer agreements in place with a hospital and a local ambulance provider.

A 2-1 ruling by the 6th Circuit U.S. Court of Appeals on Friday reversed a previous federal court ruling in favor of abortion providers.

The Kentucky General Assembly enacted the law in 1998. It requires abortion providers to have agreements with an ambulance provider and a hospital that allow for patients to be transferred in the event of complications.

Former Gov. Matt Bevin's administration promulgated more strict regulations regarding the agreements, and that prompted a legal challenge by EMW Women's Surgical Center and Planned Parenthood of Indiana and Kentucky in 2017.

At one point, EMW was the only abortion provider in the state, and its operators filed the lawsuit when it appeared that the Louisville clinic was going to have to close because state regulators determined that it did not have proper transfer agreements in place.

Chief District Judge Greg Stivers struck down the transfer agreement law and Bevin administration's regulations in 2018 on the basis that "the scant medical benefits from transfer and transport agreements are far outweighed by the burden imposed on Kentucky women seeking abortions."

The opinion issued by Judge Joan Larsen and Judge Chad Readler Friday reversed that ruling. They stated in their majority opinion that "the district court erred in concluding that Kentucky would be left without an abortion facility."

"EMW and Planned Parenthood have failed to make a clear showing that both of their abortion facilities would close if KRS §216B.0435 and 902 KAR 20:360 §10 go into effect," they wrote. "But that is the showing they must make. The district court's permanent injunction was based on the assumption that the regulations requiring transport and transfer agreements would impose an undue burden on the right to abortion by leaving Kentucky without an operating abortion facility. That conclusion cannot be sustained."

Judge Eric Clay offered a dissenting opinion, stating that the majority opinion "condones the evisceration of the constitutional right to abortion access in Kentucky" and would cause millions of people to be "altogether deprived of abortion access."

"This case presents the straightforward issue of whether Kentucky's requirement that abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and a transport agreement with a Kentucky-licensed ambulance service constitutes an undue burden on abortion access," he wrote. "...In the last five years, the Supreme Court has twice found laws imposing lesser burdens unconstitutional in violation of the Fourteenth Amendment. ...Yet the majority refuses to recognize the burden imposed on women by Kentucky's requirement, claiming that the district court clearly erroneously found that this requirement would effectively eliminate abortion access in the Commonwealth. Instead, the majority contends--without grounding in fact or reason--that Kentucky's abortion facilities could continue to provide abortions if they continually and indefinitely applied for ninety-day extensions of the deadline to obtain transfer and transport agreements."

Clay was appointed by President Bill Clinton in 1997. Both Larsen and Readler are appointees of President Donald Trump. Before he selected Judge Amy Coney Barrett, Trump reportedly considered Larsen as a possible Supreme Court nominee to replace Justice Ruth Bader Ginsburg.

The 6th Circuit court heard arguments in the case in August 2019, and Kentucky Attorney General Daniel Cameron intervened in the case earlier this year.

"The Sixth Circuit's ruling keeps in place an important Kentucky law for protecting the health and safety of patients by finding that Planned Parenthood and EMW failed to prove that they could not comply with the statute and regulation," Cameron said in a news release announcing the ruling. "Our office was proud to intervene in this case and ensure that the law was fully defended."

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