Today, a federal judge issued a temporary restraining order blocking the implementation of Kentucky’s newest anti-abortion law.
After HB 3, the omnibus anti-abortion law, was passed in the recent General Assembly, including an override of the governor’s veto, Planned Parenthood and the ACLU filed two separate lawsuits challenging the law. In addition, they asked for a temporary restraining order to block the law from going into effect until their lawsuits were heard.
Essentially, the plaintiffs argued that the bill as passed halted abortions in the state completely, because it implemented certain procedures and reporting requirements, and included penalties if those were not followed. But, the state agencies charged with tracking compliance were not ready to do so, and would not be for some time, even though the law went into effect immediately upon the veto override. Thus, any facility carrying out an abortion would be in violation of the law, since there was no way to comply with the requirements of the bill.
The judge agreed with that argument. Noting that “The Court does not consider at this stage the constitutionality of the substance of the requirements in HB 3, but merely the enforceability of the provisions based on the impossibility of compliance,” U.S. District Judge Rebecca Grady Jennings issued a temporary restraining order. The order will expire in 14 days, but before it does there will be a hearing on whether to continue it past that date.
Attorney General Daniel Cameron argued that even though the forms and procedures required by the new law were not in place, that should not invalidate the entire law, as Planned Parenthood could simply create their own forms and process for complying. The judge did not agree:
The plain language of HB 3 is clear that the entire law became effective and enforceable on April 13, 2022. HB 3 states, pointedly, “this Act take effect upon its passage[.]” Assuming the Kentucky Legislature “intends the clearly expressed language” of HB 3, then the entire Act, including the enforcement and penalties provisions, went into effect on its passage. It would be unreasonable for Plaintiff to assume that HB 3 does not mean what it states.
Moreover, Plaintiff has no guarantee that HB 3 will not be enforced against it or its providers. The plain language of HB 3 gives the Attorney General authority to enforce HB 3 whether or not the Cabinet has created the forms or promulgated the requisite regulations. Nowhere in Attorney General Cameron’s response was it represented that his office would not enforce HB 3 until the Cabinet creates a means to comply with it. For the reasons above, the Court finds that based on the plain language of HB 3, the Kentucky Legislature intended for the entire law to become effective immediately, regardless of whether the Cabinet has created a means for compliance.
AG Cameron also argued that there were only “a few” sections of the law that involved the reporting and process issues. The judge responded by listing all the parts of the bill that placed requirements on abortion providers, in a list that went on for multiple pages.
In the end, Planned Parenthood and the ACLU won a temporary reprieve. The ultimate question of whether HB 3 will actually become the law in Kentucky remains to be seen. Judge Jennings noted that the right to a pre-viability abortion is not absolute, but interfering with that right requires the state to demonstrate a clear reason for the state to interfere. Ultimately, that will be the question to be decided in court. In the meantime, women who actually had abortions scheduled for this month can proceed with them without fear of civil or criminal repercussions.
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