Kentucky abortions can continue for next 14 days, judge rules. What you need to know
Abortion access in Kentucky can continue for at least the next 14 days, according to an order from a federal judge that goes into effect Thursday.
Judge Rebecca Grady Jennings renewed a temporary restraining order that, for the past two weeks, has blocked state agencies from enforcing all parts of House Bill 3, a far-reaching omnibus bill enacted by the General Assembly this session to further regulate and restrict abortion access in the commonwealth. The new law, which went into effect immediately after passage, outlaws abortions after 15 weeks, bans mailed abortion pills and raises the burden of proof for minors seeking a court’s permission to get an abortion.
“As the Court explained at the hearing, it still requires additional information to rule on the motions . . . because this information has not yet been provided, it will extend and modify the temporary restraining order,” Jennings wrote.
Though the new order, which expires May 19, is a modified version of the initial order Jennings handed down late last month, the renewed version still suspends portions of the law that otherwise prohibited abortion providers from administering their normal services.
“It does not impact our ability to continue providing care,” Planned Parenthood Kentucky spokesperson Nicole Erwin said Thursday.
That means for the next two weeks, abortion providers can continue offering the procedure in the commonwealth without adhering to the new requirements under House Bill 3. Judge Jennings will decide by May 19 whether to suspend enforcement of the law for even longer through a preliminary injunction.
Planned Parenthood and the American Civil Liberties Union of Kentucky, on behalf of EMW Women’s Surgical Center — the state’s only two abortion providers — petitioned a federal court for immediate relief from the new bill when it was passed into law last month by the Republican-controlled Legislature, over a veto from Gov. Andy Beshear. In addition to the 15-week and mailed abortion pill ban, the law creates new and extensive reporting mandates for abortion providers, all of which will feed into a new certification and monitoring database (that does not yet exist) managed by the Cabinet for Health and Family Services.
The new law also raises the bar for minors seeking a court’s permission to get an abortion in lieu of a parent’s — a process called judicial bypass — and forces the state to make public the names and addresses of abortion providers, as well as personal information of patients who get abortions.
Planned Parenthood is contesting the law on the grounds that compliance is currently impossible. The new law requires the Cabinet to create a series of documents for abortion providers to report information about physicians, patients and the procedure itself. But those forms don’t yet exist.
Since providers who perform abortions without following the new law’s requirements face steep fines and civil and criminal penalties, the state’s two clinics have been forced to stop providing the medical procedure, attorneys for Planned Parenthood told Jennings earlier this week in a hearing to request a preliminary injunction.
“It needs to be clear what we’re being asked to do,” Miranda Turner, attorney for Planned Parenthood, said at a Monday hearing.
But Attorney General Daniel Cameron’s office has challenged that interpretation of the law, calling it “wrong” and asking Jennings not to grant a preliminary injunction against the new law. Cameron said compliance is only necessary once the Cabinet sets up its new reporting mechanism and not before.
Counsel for the Attorney General’s office continued that defense at the Monday hearing. Christopher Thacker said reporting compliance is possible; abortion providers need just submit the information to the Cabinet through informal means: “type that on a blank piece of paper and send that in,” he said.
Both Planned Parenthood and Jennings objected to that standard as an acceptable form of reporting such sensitive information.
“I don’t know many areas of government that are just posted on post-it notes or emails,” Jennings said.
In her Thursday order, Jennings reiterated that sentiment.
“The Court rejects Attorney General Cameron’s argument that (Planned Parenthood) can comply with HB 3’s reporting requirements by submitting the information to the Cabinet without the required form,” she wrote. The clinic “cannot be expected to report sensitive patient information to the Cabinet without knowing how to report the information or who to send it to.”
Until a mechanism for compliance is created, she wrote, compliance isn’t possible.
The ACLU, on behalf of EMW, is challenging the 15-week ban on the grounds that pre-viability abortions are a constitutionally protected right under the Fourteenth Amendment.
In defending the 15-week ban, which is modeled after a portion of the Mississippi law before the U.S. Supreme Court, Cameron argued that Kentucky has a “legitimate interest in protecting the life of the unborn, protecting mothers and ensuring the integrity of the medical profession.”
Jennings rejected that argument of Cameron’s, too, and barred his office from enforcing it for at least the next two weeks.
Since the General Assembly passed House Bill 3, a leaked draft opinion that shows U.S. Supreme Court justices intend to overturn Roe v. Wade was published by Politico. Republicans in Kentucky have made it clear their intention is to ban abortion access in the state.
A “trigger law” enacted in 2019 would do just that, putting a cap on all legal abortion access if Roe is in fact overturned, “effective immediately.” There are no rape or incest exceptions to the blanket ban. Only if a pregnant patient faces a “substantial risk of death” can a physician still perform an abortion without risking a Class D felony charge, or “to prevent serious, permanent impairment of a life-sustaining organ.”
Should Roe be overturned this summer, Kentucky’s immediate trigger ban on abortion will supersede the more than 10 other laws passed by the Legislature since 2016 that have incrementally narrowed access to the procedure, including House Bill 3.
This story was originally published May 5, 2022 at 2:05 PM.
