Sixth Circuit Revives Kentucky Abortion Clinic Transfer Rule

A member of the Coalition for Life waves to a Planned Parenthood staff member. (Robert Cohen/St. Louis Post-Dispatch via AP, File)

CINCINNATI (CN) — A divided panel of appellate judges on Friday reinstated restrictions that require abortion providers in Kentucky to obtain written transfer agreements with hospitals, a decision opponents say could leave the state without a licensed provider.

Written transfer agreements have existed in the Bluegrass State for over two decades, and are meant as a way for abortion providers to ensure patients who experience complications can be transported immediately to a nearby hospital.

However, changes to the regulations passed in 2017 made it harder for abortion providers to obtain the agreements and left EMW Women’s Surgical Center PSC in Louisville – the only provider of abortions in the state at the time – without a license.

The current set of regulations allows facilities to obtain consecutive, 90-day waivers as they exhaust all possible avenues of obtaining transfer agreements, but EMW sued the state and claimed the burden imposed by the requirement violates a woman’s due process rights.

Following a three-day bench trial, U.S. District Judge Greg Stivers sided with EMW and Planned Parenthood of Indiana and Kentucky Inc. – which has since built a facility in the state – and ruled the statutes unconstitutional.

Stivers, a Barack Obama appointee, granted the abortion providers a permanent injunction to prevent enforcement of the transfer agreement rule, and Kentucky appealed to the Sixth Circuit.

The case was argued in August 2019, and Friday’s opinion vacates the injunction and leaves open the possibility that Kentucky may no longer have a licensed abortion provider.

U.S. Circuit Judge Joan Larsen, an appointee of President Donald Trump, wrote the lead opinion and based her decision, in part, on the undue burden test recently revisited by the U.S. Supreme Court in the 2020 case June Medical Services LLC v. Russo.

The June Medical Services opinion involved a Louisiana statute that required doctors to have admitting privileges at a hospital within 30 miles of their abortion facility, and the court ultimately ruled the law was unconstitutional.

Larsen, however, determined that Chief Justice John Roberts’ plurality opinion – in which he said abortion laws’ benefits can establish a state’s legitimate interest in regulating abortion – controlled the appeals court’s decision in the Kentucky case.

She called Roberts’ opinion the narrowest of those offered in the case, and said “because the chief justice’s controlling opinion in June Medical Services sets forth, in a considered opinion, a general standard for how to apply the undue burden test, we must treat that standard as authoritative.”

“Because the controlling opinion in June Medical Services clarified that the undue burden standard is not a balancing test, the district court erred in attempting to weigh the benefits of [the Kentucky statutes] against their burdens,” Larsen wrote.

The judge called the written transfer agreements a “rational way” to combat the issue of emergency medical problems that might arise during an abortion and said the Kentucky laws therefore serve a legitimate governmental interest.

She went on to say that because EMW and Planned Parenthood can apply for waivers every 90 days under the current setup, the transfer agreements are not an undue burden that “impose a substantial obstacle” to a woman seeking an abortion.

Planned Parenthood had argued last year that staffing its facility would be difficult if they operated on the basis of 90-day waivers, but Larsen did not find sufficient evidence to support the claim. She pointed to evidence that the facility is currently performing abortions, as well as testimony from the bench trial that “Planned Parenthood itself has not ruled out the possibility of operating on that basis.”

Larsen was joined in the majority opinion by fellow Trump appointee U.S. Circuit Judge Chad Readler.

U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, wrote a 35-page dissenting opinion and called the majority’s decision “terribly and tragically wrong.”

“The majority,” he said, “directly contravenes both the plurality and concurring opinions in June Medical Services, as well as the majority opinion in Whole Woman’s Health. Correctly analyzed, the record and the law definitively demonstrate that Kentucky transfer and transport agreement requirements impose an undue burden under any possible analysis.

Clay added, “And the consequences of today’s decision could not be more dire. As a result of the majority’s deeply flawed analysis, millions of individuals will be altogether deprived of abortion access.”

The judge called the majority’s reasoning “deeply flawed” and chided them for upsetting precedent in their decision to vacate the injunction granted by the district court.

He also rejected his colleagues’ analysis of the viability of abortion facilities forced to survive by continually applying for 90-day waivers, and reasoned those operational difficulties alone represent a serious burden to women seeking abortions.

Clay ended his dissent by calling the transfer rule unconstitutional “under any possible applicable test” and said he and his colleagues are “compelled to affirmed” the injunction granted by the district court.

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