Kentucky’s new abortion law has day in court. Here’s how federal judge ruled on next steps
A federal judge will extend the temporary restraining order blocking enforcement of a new, restrictive abortion law in Kentucky.
The current temporary restraining order, set to expire on Thursday, prevents state agencies from enforcing all provisions of House Bill 3. Judge Rebecca Grady Jennings on Monday opted to renew a “modified” temporary restraining order until May 19, but it will only apply to portions of the bill. She did not provide specifics.
During those additional 14 days, Jennings will weigh whether to grant a preliminary injunction blocking enforcement of all or portions of the law.
“We need more information that’s not before the court,” Jennings said Monday, “we need more facts,” including what the current law explicitly requires of abortion providers and whether they can reasonably comply with the law as it stands.
The Kentucky General Assembly on April 13, over Gov. Andy Beshear’s veto, passed into law House Bill 3, an expansive law banning mailed abortion pills in the state and invoking a web of new rules and reporting mandates for abortion providers. In addition to requiring the state to make public the names and addresses of all abortion providers, the new law also raises the bar for minors seeking the court’s permission to get an abortion in lieu of a parent’s.
Jennings opted to extend the temporary restraining order after hearing arguments challenging the omnibus abortion bill from Kentucky’s only two abortion providers — Planned Parenthood and EMW Women’s Surgical Center. Both are seeking immediate relief from the court to block the law, which they have called “cruel” and “unconstitutional.”
Jennings, to a packed courtroom, said she understands the “underlying topic of this house bill (provokes) a lot of emotion.”
But “we are here today in a courtroom,” and her duty was to gauge the “legal nature” of the challenges, chiefly on grounds of “compliance and constitutionality.”
The American Civil Liberties Union of Kentucky, on behalf of EMW, is challenging the law’s ban on abortions after 15 weeks of pregnancy on the grounds that it’s unconstitutional under Roe v. Wade, which protects the right to an abortion to the point of viability, or around 23 weeks. Meanwhile, Planned Parenthood is challenging logistical portions of the law.
Miranda Turner, counsel for Planned Parenthood, contended on Monday that some of the law’s new requirements are “impossible to comply with,” because a certification and monitoring mechanism that allows abortion providers to be in compliance does not yet exist.
In order to provide medication abortions in Kentucky under the new law, a physician must be “qualified” and “registered” with a new registration system promulgated by the Cabinet for Health and Family Services. But that system does not presently exist, therefore there is no discernible way for a physician to prescribe abortion pills without facing a felony charge, loss of medical license, and steep fines, Turner said.
The result, at least until the Cabinet sets up the new system, is a de facto ban on abortion in Kentucky.
Jennings appeared to see the validity of this argument.
If there’s no registration and certification process currently in place, “one cannot be a non-surgical abortion provider,” she said, because “there is no path for registration right now.”
But counsel for Attorney General Daniel Cameron’s office Christopher Thacker, echoing a point Cameron’s office argued in a previous filing, said the law only requires compliance with certification, registration and reporting forms once the Cabinet creates them, and not before. Jennings called that argument “somewhat disingenuous,” since there’s no explicit provision in the law that protects abortion providers from having civil and criminal penalties levied against them in the meantime.
Republican Rep. Nancy Tate, the lead sponsor of House Bill 3, said Monday afternoon she was “very satisfied” with Jennings’ decision to extend the order for only portions of her bill. And she insisted, as she has in the past, that her aim in drafting the omnibus bill was not to ban abortion in Kentucky.
“Several people have said that basically I just want to end abortions in Kentucky,” Tate told reporters outside the courthouse after the hearing concluded.
“The long answer is, really, absolutely yes, but not with this bill,” she said. “As long as abortions are legal in the commonwealth of Kentucky, I want them to be as healthy as possible.”
This story was originally published May 2, 2022 at 5:30 PM.
