Judge denies request to enforce Kentucky’s new abortion law, keeps block in effect
Though final passage was granted more than a month ago, Kentucky’s newest law further restricting and regulating abortion access has yet to take full effect.
Judge Rebecca Grady Jennings issued a preliminary injunction on May 19 blocking the state from enforcing most of House Bill 3, an omnibus bill that bans abortions after 15 weeks, makes illegal the distribution of abortion medication by mail and requires the Cabinet for Health and Family Services to create a sprawling monitoring program to chart details of each abortion performed.
Last week, Attorney General Daniel Cameron’s office appealed the preliminary injunction to the Sixth Circuit Court of Appeals, and asked Jennings to allow his office to enforce provisions of the law in the meantime. He criticized her reasons for issuing the injunction, saying she made “legal errors.”
Jennings on Thursday denied Cameron’s request. With the injunction in place, access to abortion in Kentucky is largely as it was before House Bill 3 was passed into law.
Kentucky’s two abortion providers, Planned Parenthood and EMW Women’s Surgical Center, sued after the law was passed in mid April over Gov. Andy Beshear’s veto. Judge Jennings issued successive temporary restraining orders spanning four weeks beginning on April 21, and she granted a preliminary injunction in late May, blocking the law from taking effect for now.
While portions of the new law are enforceable — mailed abortion pills are, for instance, currently illegal under the law — the injunction blocks many of the reporting requirements, as well as the 15-week ban. The law’s stricter standards for physicians prescribing abortion pills in person and for minors seeking abortions are also blocked by the injunction, because documenting both processes must be reported on forms created by the Cabinet that do not yet exist.
‘Multiple provisions of HB 3 are unconstitutional’
The state’s fight over abortion access unfolds as long-held federal constitutional protections hang in the balance. The local tussle over House Bill 3 could soon become a moot point, as the U.S. Supreme Court is positioned to overturn Roe v. Wade, the landmark case that cemented reproductive rights protections across the country half a century ago.
If Roe is overturned — a leaked draft opinion from the high court reported by Politico earlier this month suggests that’s likely — Kentucky’s 2019 “trigger law” will make all abortions immediately illegal across the state, with few medical exceptions.
In the meantime, Kentucky’s two remaining abortion providers are challenging the constitutional merits of House Bill 3, and Cameron’s office is pushing back.
Calling Judge Jennings’ decision to grant a preliminary injunction an “abuse of discretion” and one that “irreparably harms” the state, Cameron, in his May 20 request pending appeal, said his office was “deprived . . . of any real opportunity to challenge many of the factual claims” made by attorneys for Planned Parenthood and EMW.
Cameron has rebuked legal challenges to the new law, arguing that compliance is possible even if the mechanisms for compliance don’t exist. Plus, he has argued, penalties can only be enforced once the Cabinet dispenses the required forms, not before. Violators of the new reporting requirements face up to $1 million in fines, loss of medical license, and a Class D felony, according to the law.
At a preliminary injunction hearing in early May, Christopher Thacker, counsel for Cameron’s office, said abortion providers need just submit the required information to the Cabinet through informal means: “type that on a blank piece of paper and send that in,” he said.
Jennings objected at the time 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,” she retorted.
She hammered this point home in her ruling denying Cameron’s motion last week.
“It is impossible for (Planned Parenthood and EMW) to even attempt compliance with the vast majority of provisions because compliance would require forms, programs, regulatory guidance, or a waiver from the Cabinet,” Jennings wrote. “For example, it is logically inconsistent to assert (abortion providers) should attempt in good faith to comply with the Kentucky Abortion-Inducing Drug Certification Program . . . since it has not been created.”
Jennings said Cameron’s office had ample time to respond, and that her basis for choosing to block the law was sound.
“The Court recognizes the preliminary injunction is an extraordinary remedy and does not take this standard lightly,” she wrote. “Multiple provisions of HB 3 are unconstitutional,” including the law’s ban on abortions after 15 weeks. This time-stamped ban, Republican Sen. Max Wise told lawmakers during the session, is modeled after the Mississippi case before the Supreme Court, Dobbs v. Jackson Women’s Health Organization, which could lead to the overturning of Roe.
But as federal law stands now, a 15-week state ban and other provisions of the law hampering provider compliance and therefore limiting abortion access are unconstitutional, Jennings wrote. Her injunction of the 15-week ban hangs on the Supreme Court’s decision in Dobbs, expected this summer.
For now, “The case law recognizes a constitutionally-protected right to a pre-viability abortion under the Fourteenth Amendment,” she said. “Because (providers) cannot comply with certain provisions of HB 3 and thus cannot legally perform abortion services, their patients face a substantial obstacle to exercising their rights to a pre-viability abortion.”
