Kentucky AG urges judge to reject Planned Parenthood’s challenge to abortion law. Here’s why
Calling it “wholly improper,” Kentucky Attorney General Daniel Cameron has asked a federal judge not to grant Planned Parenthood’s request that a new law restricting abortion in the commonwealth be blocked from taking effect.
In his 23-page response to a pair of lawsuits filed in federal court last week by Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky and the American Civil Liberties Union of Kentucky, Cameron on Tuesday said both groups overstepped in requesting a temporary restraining order and preliminary injunction against all of House Bill 3, a sweepingly restrictive new anti-abortion bill that Republicans passed into law last Wednesday over Gov. Andy Beshear’s veto.
Cameron called the new law “common sense” because it “enacts a number of varying, much-needed regulatory reforms on abortion practices in Kentucky.”
Some of those reforms, he said, “require abortion providers to comply with new forms and regulations that the Cabinet for Health and Family Services must promulgate over the next couple of months.”
Planned Parenthood and the ACLU are challenging the law “on grounds that (providers) cannot comply with administrative forms and regulations that the Cabinet has not yet created.” Cameron said their interpretation of the new law is “wrong.”
Abortion providers are not required to submit to a new abortion monitoring system that does not yet exist, Cameron argued. As such, pausing all abortions in Kentucky for fear of violating the civil and criminal penalties outlined in the new law is not necessary.
“Once the Cabinet has created those forms in compliance with House Bill 3, then Planned Parenthood’s obligation to utilize those forms kicks in,” he wrote.
In other words, he argues that the new law leaves room for abortions to continue in Kentucky, and that compliance with the new provisions of the law is only required once the system has been created.
“The bill in no way shuts that business down or orders it to cease operations,” he wrote, adding that in the meantime, there are other parts of the law abortion providers can comply with.
Should a federal judge block the law from taking effect, barring people like him from enforcing it, would “irretrievably harm the women and unborn children it was enacted to protect,” he said.
Cameron characterizes the challenge to the whole of HB 3 a “sleight of hand.” Planned Parenthood “summarily asserts that all of HB 3 operates as an effective ban on pre-viability abortion and must therefore be enjoined in its entirety. That argument makes no sense, and Planned Parenthood has done nothing to convince the court otherwise.”
Because of this, he said the groups’ request for an injunction “based on its objection to a small number of administrative requirements is wholly improper and should be rejected.”
Not only does the new law ban abortion after 15 weeks in Kentucky — a section of the bill modeled after the Mississippi case before the U.S. Supreme Court that could lead to the overturning of Roe v. Wade this summer — it also:
- Makes illegal the mailing of abortion pills.
- Tightens the current laws impacting parental consent for minors seeking abortions. Raise the bar for when a court can grant judicial bypass for a minor seeking an abortion.
- Enshrines that no “public agency funds” are used, directly or indirectly, to fund an abortion.
- Requires the state publish the names and addresses of all physicians who perform abortions to a public database, as well as personal details of all patients who get an abortion.
- Mandates the Cabinet for Health and Family Services to create an extensive certification and monitoring system to track anyone who dispenses, ships and manufactures abortion pills.
- Requires the state to create an online complaint portal to receive anonymous complaints, each of which must be investigated.
Planned Parenthood and the ACLU filed complaints last week in the U.S. District Court for the Western District of Kentucky asking a federal judge stop the law from being enforced, on the grounds that provisions of it are unconstitutional.
Because the new law immediately instituted a series of requirements abortion providers must adhere to — all of which hinge on the Cabinet creating a new certification and monitoring database — or else they face loss of medical license, fines and criminal penalties, abortions are not currently being provided in the commonwealth. That de facto ban, both groups argue, amounts to a violation of one’s constitutional right to an abortion, as well as a violation of abortion providers’ due process rights under the 14th Amendment.
To dispense abortion pills in person under the law, for instance, providers have to log information into a new monitoring database under the Kentucky Abortion-Inducing Drug Certification Program, which does not yet exist. Continuing to dispense abortion pills outside of that new system could result in a loss of medical license, a minimum $100,000 fine and a felony charge.
“It is impossible to comply with (the law’s) vast provisions, resulting in an immediate ban on abortion statewide in the absence of this court’s intervention,” Planned Parenthood wrote in its lawsuit. Abortions have been halted at the state’s two providers in Louisville since Thursday.
But Cameron said the argument that HB 3 violates providers’ due process rights and that it bans abortions in Kentucky until the system is up and running is again based on a “flawed interpretation of the bill.”
Cameron said the law allows 60 days for the Cabinet to set up its new certification and monitoring system, and that abortion providers such as Planned Parenthood “will not be required to use and/or submit such forms until the Cabinet has created and distributed them.”
“If the Cabinet has not provided the form as required by HB 3, then there is no obligation to file it,” he wrote.
“The fact that Planned Parenthood is not yet able to complete certain forms is not a blank check for (it) to ignore every other provision of HB 3 that it does not like.”
In a response to Cameron’s filing, Planned Parenthood Great Northwest CEO Rebecca Gibron said her organization “disagrees” with Cameron’s interpretation of the new law and “will continue to vigorously fight it in court.”
“We’re looking forward to relief from the court so that we can continue to provide critical abortion care, which has been denied to nearly one million Kentuckians of reproductive age across the state since the bill became law almost a week ago,” she said.
This story was originally published April 19, 2022 at 2:55 PM.
