Federal Court Reinstates Kentucky Law That Was Designed To Eliminate Abortion Access In The State

The decision forces clinics to apply for a waiver from the health department every 90 days to remain open

October 16, 2020 7:45 pm

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LOUISVILLE, Ky. — The Sixth Circuit Court of Appeals ruled today to uphold a Kentucky law that was used by former Governor Bevin to try to close abortion clinics and cut off access in the state. The court’s decision forces the Commonwealth’s two clinics, EMW Women’s Surgical Center and Planned Parenthood of Indiana and Kentucky, to apply for an unnecessary waiver from the health department every 90 days to continue providing abortion services.

Today’s ruling lifts a 2018 injunction from the District Court and reinstates a politically motivated, medically unnecessary requirement that clinics obtain a written transfer agreement with a local hospital and a transport agreement with an ambulance in order to operate. Despite evidence that these agreements serve no medical benefit to patients, and that abortion is one of the safest medical procedures, the Sixth Circuit still overturned the 2018 ruling from the lower court. Short of further action by the courts, health care providers’ only recourse is to navigate this needless red tape every 90 days. If at any time the governor refuses to grant the waiver, Kentucky could become the first state without any abortion providers.

In his dissenting opinion, Judge Clay wrote: “Today, the majority openly disregards our standard of review and discards binding precedent. In doing so, it condones the evisceration of the constitutional right to abortion access in Kentucky…At the end of the day, no matter what standard this Court is bound to apply, the majority’s decision today is terribly and tragically wrong.”

The Commonwealth has passed numerous burdensome restrictions on abortion care in recent years, including an attempt to ban abortion when many people do not even know they are pregnant. The law at issue in this case is similar to abortion restrictions previously passed in Texas and Louisiana, both struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt and June Medical Services v. Russo, respectively. It is just one of more than 480 restrictions on abortion passed by states since 2011 as part of a coordinated, nationwide effort to push abortion care out of reach.

“It is outrageous that the court thoroughly disregarded medical evidence and Supreme Court precedent to side with Kentucky’s anti-abortion politicians,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “Abortion providers should not have to jump through medically irrelevant hoops to keep their clinic doors open. We will continue to fight to make sure that people are able to get the care they need.”

“Politicizing abortion care has detrimental effects on the lives of Kentuckians,” said Heather Gatnarek, staff attorney for the ACLU of Kentucky. “Our client remains committed to providing safe, legal care to those who need it. The clinic is open, and we will do everything in our power to make sure that it stays open.”

“Kentucky just inched closer to losing abortion access in the state. This is what it looks like when politicians chip away at protections under Roe — pushing medically unnecessary laws that jeopardize abortion access without ever overturning Roe. This action is in line with Attorney General Daniel Cameron and the Trump administration’s attempts to politicize public health,” said Chris Charbonneau, CEO of Planned Parenthood of Indiana and Kentucky. “Planned Parenthood’s doors remain open and we will continue fighting to maintain access to abortion care for all Kentuckians. It must be stated that we are in a dangerous moment for abortion rights and what this moment calls for is leadership to put all people before politics and do what’s necessary to ensure every person has access to the care they need and deserve.”

“This law threatens abortion access in the state. When health care access is attacked, it is Black and Brown people who are forced to navigate racist and discriminatory systems and who suffer the most,” said Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America. “Let me be clear: we will not allow Kentucky to be the first state in the country without a single abortion provider. Planned Parenthood Federation of America will continue working with our partners to ensure every person can access the care they need no matter who they are, where they live, or how much they earn, no matter what.”

“Former Governor Bevin tried to close down the last abortion provider in the Commonwealth at the time,” said Don Cox, an attorney at Lynch, Cox, Gilman & Goodman P.S.C. “If the clinic doors had been forced to close, it would have been devastating for Kentucky women. Abortion access should not be secured in 90-day increments, and we will remain vigilant to ensure these blatantly burdensome laws do not cut off access to abortion services.”

This case was brought by the American Civil Liberties Union, the ACLU of Kentucky, and Lynch, Cox, Gilman & Goodman P.S.C. on behalf of E.M.W Women’s Surgical Center, and Planned Parenthood Federation of America and Orrick on behalf of Planned Parenthood of Indiana and Kentucky.

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