Kentucky Defends Abortion Clinic Transfer Rule in Sixth Circuit

CINCINNATI (CN) – An attorney for the state of Kentucky argued before a Sixth Circuit panel Thursday to reinstate a statute requiring abortion clinics to maintain transfer agreements with local hospitals, while a lawyer for one clinic said the rule effectively bans the procedure statewide.

Abortion opponents during a July 19, 2017, rally in downtown Louisville, Ky. (AP Photo/Dylan Lovan)

A federal judge ruled last September that the restriction was unconstitutional, finding that “the scant medical benefits from transfer and transport agreements are far outweighed by the burden imposed on Kentucky women seeking abortions.”

The agreements, codified in state law after the passage of Senate Bill 217 over 20 years ago, require abortion clinics to maintain transfer agreements with hospitals in the event of “unforeseen complications” during an abortion.

EMW Women’s Surgical Center PSC and Planned Parenthood of Indiana and Kentucky Inc. did not challenge the rule until 2017, after their medical licenses were revoked by the state.

The clinics sued Adam Meier, in his capacity as secretary of Kentucky’s Cabinet for Health and Family Services, and Republican Governor Matt Bevin.

Following a bench trial, U.S. District Judge Greg Stivers in Louisville ruled in EMW’s favor, and found the transfer agreements provide no significant benefits to women seeking abortions.

Stivers found that, based on expert testimony provided by EMW’s witnesses, most complications from abortions occur after patients have left the facility, and that emergency response times are not improved by a written transfer agreement.

Because the continued implementation of the law would require the closure of all abortion facilities in the state, Judge Stivers found the agreements violate a woman’s constitutional right to obtain an abortion.

“The absence of abortion services in Kentucky would result in expected delays in care and cause a higher risk of complications,” he wrote. “The unavailability of legal abortions in Kentucky would also likely increase the number of self-performed, unlicensed, and unsafe abortions for Kentucky women.”

On Thursday, attorney Chad Meredith argued on behalf of the state, and told the Sixth Circuit panel that the abortion clinics are asking to be excused from transfer agreements simply because they perform abortions.

“This is about women’s safety and health,” Meredith said.

The attorney spoke for several minutes about 90-day license extensions provided by the state to facilities that make a good faith effort to obtain a transfer agreement with a hospital, but was interrupted by U.S. Circuit Judge Eric Clay.

Clay, a Bill Clinton appointee, asked Meredith why he was spending time talking about the agreements after the lower court found they do not provide any added benefit to women, and then asked the attorney to show why the findings of the trial court were erroneous.

Meredith told Clay that the panel is required to review all the evidence in the record, and that transfer agreements “optimize the outcome” of emergency medical situations.

U.S. Circuit Judge Joan Larsen, an appointee of President Donald Trump, asked about the “alternative measures” required for an abortion facility to obtain a 90-day extension, but the state’s attorney told the panel he doesn’t know what would qualify because neither of the plaintiffs attempted to obtain an extension.

Meredith concluded his arguments by telling the panel that every woman in Kentucky is located no more than 150 miles from an abortion clinic, even if that clinic is in another state, and stressed that being forced to cross a state line does not constitute an undue burden on a woman’s right to obtain an abortion.

American Civil Liberties Union attorney Brigitte Amiri argued on behalf of EMW, and called the transfer agreement restrictions “tantamount to a ban on abortion in the state of Kentucky.”

Amiri touched on her opposing counsel’s claim that her client failed to apply for a license extension, and told the panel that the state has made it clear EMW cannot rely on “indefinite” extensions to operate its Louisville facility.

U.S. Circuit Judge Chad Readler, another Trump appointee, asked if similar transfer agreements in other states were invalid on the same grounds argued by her client and Planned Parenthood.

The attorney pointed out that the evidence in the record proves the agreements don’t increase the safety of patients, and also said they provide “no enhanced patient benefit.”

Attorney Easha Anand argued on behalf of Planned Parenthood, and spoke at length about the difficulty of hiring staff for the clinics if the facilities are forced to operate on 90-day extensions under the threat of closure.

Judge Larsen pushed back against Anand’s argument, and told the attorney it is her client’s burden to prove that claim.

Anand agreed, but said that burden was satisfied by the undisputed testimony provided at trial by the operators of the EMW facility that they could not hire medical professionals without a guarantee of continued employment.

She also cited the 2016 U.S. Supreme Court case Whole Woman’s Health v. Hellerstedt, and told the panel that the court in that case did not require any testimony, but instead based its decision on “the most likely outcome” if certain restrictions were implemented.

In his rebuttal, Meredith once again told the panel the state’s restrictions were designed guarantee the health and safety of women who choose to have abortions.

He urged the panel to reverse the lower court’s decision and allow the abortion providers to go through the process of obtaining a 90-day extension to determine the validity of the restrictions.

The courtroom was at full capacity for Thursday’s arguments, which were initially delayed while security and court staff sent several visitors to an overflow room to allow law clerks to be seated in the courtroom.

No timetable has been set for the Cincinnati-based appeals court’s decision.

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