Sixth Circuit Rejects Kentucky’s Second Trimester Abortion Restrictions

CINCINNATI (CN) — The Sixth Circuit refused Tuesday to reinstate a Kentucky law that would require physicians to perform a so-called fetal demise procedure before a standard second trimester abortion, ruling the law imposes a significant burden on women seeking abortions.

A divided three-judge panel upheld a permanent injunction granted by U.S. District Judge Joseph McKinley, who found House Bill 454 unconstitutional last year following a bench trial.

EMW Women’s Surgical Center in Louisville, the last operating abortion clinic in the Bluegrass State, sued the state’s Cabinet for Health and Family Services after the bill was signed into law by former Republican Governor Matt Bevin in April 2018.

In his ruling, McKinley said the dangers inherent in the fetal demise procedures outweighed any interest of the state.

“The commonwealth’s legitimate interests do not allow the imposition of an additional required medical procedure – an invasive and risky procedure without medical necessity or benefit to the woman – prior to the standard D&E abortion,” he wrote, referring to the dilation and evacuation method. “Here, Kentucky’s legitimate interests must give way to the woman’s right.”

The case was argued before the Cincinnati-based appeals court in January. U.S. Circuit Judge Eric Clay, an appointee of Bill Clinton, wrote Tuesday’s majority opinion.

Kentucky argued that HB 454 is not a de facto ban on second trimester abortions because its requirements regarding fetal demise procedures are “reasonable alternatives” to the D&E procedure.

Judge Clay stopped that argument in its tracks and pointed out a “fundamental flaw” in the state’s claim.

“Fetal-demise procedures,” he wrote, “are not, by definition, alternative procedures. A patient who undergoes a fetal-demise procedure must still undergo the entirety of a standard D&E. Instead, fetal-demise procedures are additional procedures. Additional procedures, by nature, expose patients to additional risks and burdens.”

The judge added, “No party argues that these procedures are necessary or provide any medical benefit to the patient. The district court’s findings suggest that these procedures impose only additional medical risks. Thus, we consider them inherently suspect.”

Clay proceeded to sift through the evidentiary findings of the bench trial regarding each of the proposed fetal demise procedures – which include injections of digoxin and potassium chloride and umbilical cord transections – and found that McKinley’s ruling was not clearly against the evidence presented during trial.

Clay classified each of the three fetal demise procedures as “medically risky and unreliable,” and rejected the state’s arguments regarding their benefits, including the reduction of fetal pain.

Evidence presented to the district court suggested that a fetus does not feel pain until around 24 weeks into a pregnancy, at which point D&E procedures are no longer performed, and so the appeals panel’s majority found McKinley’s decision was not clearly erroneous.

Senior U.S. Circuit Judge Gilbert Merritt Jr., a Jimmy Carter appointee, joined Clay’s opinion.

U.S. Circuit Judge John Bush, an appointee of President Donald Trump, dissented from the majority and authored a separate 10-page opinion.

In the dissent, Bush said it was odd that “not a single person whose constitutional rights are directly impacted by the law is a party to the case,” and argued the case should have been dismissed for lack of standing.

While physicians and abortion providers are generally granted third-party standing to sue on behalf of their patients, Bush was skeptical that the providers in this case could satisfy the “closeness requirement” of such a position.

Bush cited expert testimony from the trial that showed a large percentage of women seeking second trimester abortions prefer to have a fetal demise procedure before the abortion, and said this created a conflict of interest between the abortion providers and the patients they represented in the suit.

“At the very least,” he wrote, “the proof at trial reflects a potential conflict between the interests of the EMW physicians and some, perhaps the majority, of the patients that they seek to represent. All of the evidence presented at trial about patient preference circumstantially supports a finding that at least some – and potentially, most – of patients seen by plaintiffs would favor the effect of H.B. 454 because those patients would want fetal demise before a D&E.”

He added, “The statute essentially requires that abortion providers at EMW receive the necessary training, which in turn would allow those women who prefer fetal demise to obtain it before the D&E procedure is performed.”

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