Court rescues last abortion clinic in Kentucky

The last abortion clinic in Kentucky can stay open after a federal judge ruled that a state law on licensing agreements was unconstitutional.

On Friday, U.S. District Court Judge Greg Stivers was given the task of determining the constitutionality of a state law on licensing agreements between abortion clinics and nearby hospitals. After almost a year of deliberation, Stivers ruled in favor of the EMW Women’s Surgical Center and threw out Kentucky’s law. 

The legislation in question required abortion clinics to hold “transfer agreements” with ambulances and hospitals to transport and transfer women in case of complications during abortion procedures. 

In the past, the head of a hospital’s obstetrics and gynecology department. would sign the EMW clinic’s transfer agreement.

However, the state recently told the clinic that that signature would not suffice and that the signature of a hospital president or CEO was required. No local hospital president or CEO has agreed to sign a transfer agreement.

Dona Wells, co-founder of the EMW clinic, and other critics of the state law argued that the transfer agreement law is unnecessary, as federal law requires emergency rooms to treat any individual who shows up. 

Wells and other critics believed that the restriction is an attempt by Governor Matt Bevin’s administration to eliminate abortion services in Kentucky. The state argued that the regulations were necessary in order to protect the health and safety of women. 

The EMW clinic sued the state in 2017, claiming that state regulations posed an “undue burden” on a woman’s right to abortion. Planned Parenthood and the American Civil Liberties Union (ACLU) signed on as plaintiffs in the case, due to its potential implications in establishing a precedent for other states with similar laws.

Doug Hogan, spokesman for the Kentucky Cabinet for Health and Family Services, argued that the regulations are about protecting women’s health and safety.

“The Bevin Administration is working diligently to protect the health, welfare and lives of women in Kentucky,” Hogan said in a written statement. “The statutory requirement for transfer agreements, which was enacted in 1998 and not questioned for 19 years, is necessary to ensure women have access to life-saving procedures in the event of an emergency.”

When asked why EMW’s transfer agreements were allowed in the past, but not in 2017, neither Hogan nor a state health department spokesperson responded to multiple requests for comment.

Stivers ruled that requiring abortion clinics to have hospital transfer and ambulance transport agreements violated due process under the 14th Amendment of the U.S. Constitution.

In addition to keeping EMW open, the ruling means that another facility can begin performing abortions, according to Brigitte Amiri, deputy director for the Reproductive Freedom Project of the American Civil Liberties Union. 

According to Amiri, a Planned Parenthood facility in Louisville, Ky. was previously built but not allowed to begin performing abortions because the organization couldn’t get the agreements.

If the court had not ruled in favor of the EMW clinic, Kentucky would have become the first state without a single abortion clinic. According to the Guttmacher Institute, there are currently six states with only one abortion clinic - Kentucky, Mississippi, North Dakota, South Dakota, West Virginia and Wyoming. 

The situation in Kentucky is representative of a national trend: the number of abortion clinics is in decline.

In 1996, there were 452 abortion clinics in the U.S., according to the Guttmacher Institute, which advocates for reproductive rights. By 2005, that number had dropped to 381. According to the most recent data, collected in 2014, there are only 272 abortion clinics left in the nation.

Judge Stivers verdict on the Kentucky state law is seen as a victory for abortion access advocates, but the decision may be appealed and could potentially reach the U.S. Supreme Court.