Kentucky attorney general sues Beshear’s Cabinet over new abortion law
Attorney General Daniel Cameron on Tuesday sued the state Cabinet for Health and Family Services for failing to enforce a new restrictive abortion law — the same law a federal judge earlier this month blocked from taking effect.
The lawsuit, filed in Franklin County Circuit Court, argues that Gov. Andy Beshear’s Cabinet was mandated to comply with parts of the law, like creating and distributing forms on which abortion providers submit information to the state, by June 12 — 60 days after it took effect on April 13. The lawsuit was filed because the Cabinet has not complied, said Cameron, who is running for governor.
Gov. Beshear “has a duty to faithfully execute the law, but he has failed to implement important provisions of House Bill 3,” Cameron said in a statement Tuesday. “His administration is required to create forms and set forth regulations that protect women’s health and unborn babies, including regulating abortion-inducing drugs. Failure to act is not an option, and our lawsuit asks the court to direct the Governor and the Cabinet to follow the law.”
Enforcement of House Bill 3, however, is still mostly suspended. Passed during the 2022 legislative session, the sweeping measure caps abortions at 15 weeks, limits teenagers’ access to the procedure, bans the mailing of abortion pills, and sets up an expansive network of paperwork, certification and monitoring mandates to track information about each abortion performed in the commonwealth.
After Kentucky’s two abortion providers challenged the law in federal court, arguing that immediate compliance was impossible without the necessary forms and certification framework through which to comply, Judge Rebecca Grady Jennings granted a preliminary injunction in late May, blocking most of the law from taking effect. Abortion access in the state, as a result, is largely as it was before HB 3 became law.
AG argues Cabinet should set new regulations despite injunction
Cameron, arguing that Jennings made “legal errors” in her ruling, appealed the preliminary injunction to the Sixth Circuit Court of Appeals last month, and asked her to allow his office to enforce parts of the law in the meantime — a request she denied.
All parts of the law that require any reporting of information on forms provided by the Cabinet were enjoined by the court, which is most of the law, including: surgical abortions, the distribution and prescription of abortion medication by providers and pharmacies, disposal of fetal remains, and creation of the new Kentucky Abortion-Inducing Drug Certification Program for pharmacies, manufacturers, distributors and abortion clinics.
While the injunction prevents these parts of the law from being enforced, Cameron in his lawsuit argues it doesn’t prevent the Cabinet from creating the necessary reporting forms on the back end, and promulgating administrative regulations that dictate, for instance, the dispensing of abortion pills and interment of fetal remains, as is required by the new law. Not doing so is a failure of statutory duty, he said.
But the Cabinet doesn’t see it that way.
Beshear’s Cabinet: Federal court has jurisdiction over this issue
Calling Cameron’s lawsuit a “baseless and blatant political stunt” in a statement Tuesday afternoon, a Cabinet spokesperson said the agency is complying with the law under the parameters dictated by the injunction.
“The Cabinet has not refused to comply with any requirements and has told the Attorney General that it will work through the federal court that has jurisdiction over this matter,” spokesperson Susan Dunlap said. “In response, the Attorney General sent threatening letters to the Cabinet, asking us to ignore the court’s orders and today defied the federal court by trying to go around it.”
One of the “threatening letters” as the Cabinet called it was emailed on May 27 from Deputy Attorney General Victor Maddox to Wesley Duke, general counsel for the Cabinet. Maddox says the law “makes needed changes to Kentucky’s regulation of abortion and tasks [CHFS] with implementing several of those changes,” and “disregarding HB 3’s statutory mandates would be an abdication of the Governor’s constitutional duties.”
He asks the Cabinet to provide “confirmation that CHFS will fulfill [its] obligations on or before the 60-day statutory deadline.” If the Cabinet didn’t provide this confirmation, the letter reads, “the Attorney General will faithfully carry out his duties under Kentucky law.”
In his June 3 response, Duke told Maddox, “I received your letter dated May 27, 2022, in which you threaten legal action against [CHFS] for alleged non-compliance with HB 3.”
He goes on to say Cameron’s “assertions that the Cabinet is refusing to comply with or ignoring any requirements imposed on it by HB 3 are not accurate,” and as much has been explained in the federal court proceedings “on numerous occasions.”
“Your letter appears to ask the Cabinet to ignore the court’s order or face legal action by your office if it does not,” Duke continued. “Any disagreement with the court’s preliminary injunction or orders should be addressed to the court, not through the threat of legal action against the Cabinet that would evade the court’s jurisdiction.”
This story was originally published June 15, 2022 at 10:39 AM.
