New filings in cases that could affect abortion access in Kentucky

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Planned Parenthood and the administration of Gov. Matt Bevin both filed motions recently in two separate cases that could ultimately expand or restrict abortion access in Kentucky for years to come.

Both filings are reactions to a federal judge’s order last September striking down a Kentucky statute and regulation that required abortion providers to have written transport agreements with an ambulance service and hospital in the event of a medical emergency.

This ruling by U.S. District Judge Greg Stivers found that such transfer requirements provide no quantifiable benefit to women’s health, and would in fact “pose a threat to the health and safety of women in Kentucky” if enforced as a means to shut down EMW Women’s Surgical Clinic in Louisville, the last clinic in the state to offer abortion services.

Stivers’ ruling in EMW v. Glisson followed the Supreme Court of the United States striking down a similar law in Texas in 2016 for the same reasons.

The Bevin administration has appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and last week filed a brief making its case that the statute and regulation “do not constitute an undue burden on the right to an abortion,” as the state “has a valid interest in protecting the health and safety of abortion patients.”

In a motion filed in Jefferson Circuit Court on Jan. 25, Planned Parenthood of Indiana and Kentucky cited the federal court’s ruling striking down these transfer agreement requirements as a reason to once against dismiss a separate lawsuit brought against it by the Bevin administration in early 2016, which asserted that its Louisville clinic was performing illegal abortions without a license or valid transfer agreement and sought up to $570,000 in fines.

Jefferson Circuit Court Judge Mitch Perry previously entered a summary judgment dismissing the Bevin administration’s lawsuit against Planned Parenthood in July 2016, ruling that the state failed to state a claim for relief.

Rebutting the arguments of Bevin’s general counsel, Perry stated that Planned Parenthood’s clinic only started performing abortions in December 2015 after receiving explicit directions from the inspector general of the Cabinet for Health and Family Services, with the understanding that an official license to perform abortions could only be granted after the clinic passed an inspection by that agency while it was operating.

However, the Kentucky Court of Appeals reversed that dismissal and remanded the case back to Circuit Court in December 2017, ruling that “while the Cabinet may have a difficult time proving its allegations,” the complaint at least met the minimum standard to survive a motion to dismiss.

The local Planned Parenthood sought for the Kentucky Supreme Court to review that appeals court decision, but is now asking Jefferson Circuit Court to once against issue a summary judgment dismissing the Bevin administration’s lawsuit, citing the federal court’s ruling in September that struck down the transfer agreement law and regulation.

The Bevin administration asserted that Planned Parenthood’s transfer agreements with University of Louisville Hospital and Louisville Metro EMS were deficient in January 2016 when it ordered them to cease and desist any abortion services, citing those alleged deficiencies when it sued the organization the following month.

However, with the federal judge striking down those requirements for transfer agreements in the EMW v. Glisson case, a Planned Parenthood attorney, Laura Landenwich, wrote in her motion for dismissal that “there is no longer any good faith basis for the Cabinet to continue assertion that PPINK violated the law.”

“The Cabinet cannot be permitted to employ an unconstitutional statute to threaten the financial viability of PPINK simply because this Administration would like to make abortion services unavailable in Kentucky,” wrote Landenwich. “It is wholly inappropriate to use government agencies to manipulate and ensnare service providers navigating a regulatory quagmire. The claims in this case are thoroughly unsupported by the record, and lack even a glint of credibility.”

Landenwich also noted that Judge Stivers’ ruling in the EMW case — in which Planned Parenthood of Indiana and Kentucky intervened as a plaintiff — stated that the Bevin administration’s contention that Planned Parenthood performed illegal abortions “is not well-taken,” as the cabinet’s inspector general at the time clearly advised the clinic to begin operations in anticipation of an inspection to complete the licensing process.

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Written by Joe Sonka. Cross-posted from
Insider Louisville via the Kentucky Press News Service.