Big victory for Kentucky in 6th Circuit decision

By Dave Andrusko 

It’s been over a year since a panel of the 6th U.S. Circuit Court of Appeals heard EMW Women’s Surgical Center, et al. v. Friedlander, but on Friday they reached the correct conclusion by upholding  a Kentucky pro-life law.

Challenged by the ACLU, a Kentucky abortion clinic, and Planned Parenthood, the law requires that abortion clinics have a transfer agreement with a hospital as well as an agreement with a local ambulance provider. “Such an agreement ensures that abortion clinics can transfer patients to local hospitals in the safest and fastest way possible in the event of a medical emergency or complication,” explained Kentucky Attorney General Daniel Cameron.

Writing for the Louisville Journal Courier, Deborah Yetter explained

In doing so, the panel struck down the 2018 decision by U.S. District Judge Greg Stivers that such rules were unnecessary and posed an undue burden on women seeking abortions. Stivers’ ruling followed a legal challenge by EWM Women’s Surgical Center and Planned Parenthood of Indiana and Kentucky.

The decision comes more than a year after the case was argued before the 6th Circuit panel in Cincinnati.

Attorney General Cameron added, “The Sixth Circuit’s ruling keeps in place an important Kentucky law for protecting the health and safety of patients by finding that Planned Parenthood and EMW failed to prove that they could not comply with the statute and regulation.” Cameron said, “Our office was proud to intervene in this case and ensure that the law was fully defended.”

The nub of the lawsuit is that the transfer agreement is both unnecessary and a ruse to block access to abortion—“They’re about shutting down abortion facilities,” said Brigitte Amiri, an ACLU attorney for EMW. Amiri insisted there were no problems until  Matt Bevin became governor.”

The challenge was initially brought by EMW Women’s Surgical Center of Louisville. However Judge Stivers, who heard the case without a jury, allowed Planned Parenthood of Indiana and Kentucky to join in because they intend to open an abortion clinic in Louisville.

In his 60-page ruling Judge Stivers channeled the pro-abortion arguments. “The evidence presented here establishes clearly that scant medical benefits from transfer and transport agreements are far outweighed by the burden on Kentucky women seeking abortions,” he wrote.

But in vacating the  permanent injunction issued by Judge Stivers,  Judge Joan Larsen joined by Judge Chad Readler, cited Justice Roberts concurring opinion in the June 29th June Medical Services, L.L.C. v. Russo decision. As we’ve explained in prior stories, Justice Roberts wrote that “states do not have to prove that the benefits of an abortion restriction outweigh the burden on a person’s ability to access the procedure— it just has to show that it does not present a ‘substantial’ obstacle or burden.”And, as Kate Smith of CBS News noted, Roberts also wrote “Nothing about [previous Supreme Court precedent] suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”

Planned Parenthood and EMW have the option of appealing the decision to the full 6th Circuit.