On Friday a panel of the U.S. Court of Appeals for the Sixth Circuit upheld a Kentucky law requiring abortion clinics to obtain transfer agreements with nearby hospitals and ambulance services to transport women if an abortion leads to an emergency situation.
In a 2-1 vote, the panel struck down the 2018 decision of district court Judge Greg Stivers, an Obama appointee, who ruled the abortion safety law placed an undue burden on women seeking an abortion.
The plaintiffs in the case, EWM Women’s Surgical Center and Planned Parenthood of Indiana and Kentucky, had argued the safety transfer law would close down the state’s only abortion clinic, shutting down access to abortion.
In the opinion, Judge Joan Larsen, joined by Judge Chad Readler, both Trump appointees, ruled the lower court erred in concluding enforcement of the Kentucky law would leave the state without a licensed abortion provider.
Larsen explained the “undue burden” standard in light of the recent U.S. Supreme Court decision in June Medical Services v. Russo, in which the High Court ruled against a Louisiana abortion safety law that required abortionists to hold admitting privileges at nearby hospitals to facilitate continuity of care should a woman require transfer to a hospital in an emergency.
A Louisiana federal district judge cited the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt in ruling the Louisiana law violated a woman’s constitutional right to abortion as invented by the Court in the 1973 landmark case of Roe v. Wade.
In the Supreme Court’s decision delivered several months ago, Chief Justice John Roberts voted with the liberal wing of the Court to strike down the Louisiana regulation, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissenting.
However, in June Medical Services, the Court’s vote was actually split 4-1-4, with no controlling majority opinion, and Roberts’ statement in his concurrence:
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law [Whole Women’s Health], for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
While Roberts joined with the liberal wing in striking down the Louisiana law, he also said he rejected the “undue burden” interpretation applied by the Court in Whole Women’s Health.
Larsen wrote in the majority decision regarding the Kentucky law that abortion clinics have the option of seeking a waiver or extension to fulfill the transfer agreement requirement. Therefore, the Kentucky law is not an “undue burden” or unreasonable, she asserted, adding that argument “cannot be sustained.”
Kentucky Attorney General Daniel Cameron’s office wrote in a press release about the Sixth Circuit’s opinion considering the Chief Justice’s concurring opinion:
The Sixth Circuit also considered the U.S. Supreme Court’s recent decision in June Medical Services v. Russo and determined that Chief Justice Roberts’s concurring opinion is the law of the land. This supports the position taken by Attorney General Cameron in the transfer-agreement case in an August 2020 filing. In so ruling, the Sixth Circuit adopted a requirement that an abortion clinic challenging a law must show that it made a good-faith effort to comply before it can claim that same law is unconstitutional.
Planned Parenthood denounced the decision.
Chris Charbonneau, CEO of Planned Parenthood of Indiana and Kentucky, said, “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,” Charbonneau added.
However, Cameron said the ruling “keeps in place an important Kentucky law for protecting the health and safety of patients.”
“Our office was proud to intervene in this case and ensure that the law was fully defended,” he stated.