Appeals court upholds Kentucky abortion law requiring clinics to have transfer agreements with hospitals

A federal appeals court on Friday upheld a Kentucky law that requires abortion clinics to have written agreements with a hospital and ambulance service in case of medical emergencies.

The 2-1 ruling from the 6th U.S. Circuit Court of Appeals reverses a 2018 district court ruling that found the law, first passed in 1998, violated constitutionally protected due process rights.

EMW Women’s Surgical Center first challenged the law in 2017 after a licensing fight with then-Gov. Matt Bevin (R). EMW was the only clinic that provided abortions at the time, and Bevin claimed that it lacked proper transfer agreements and took steps to shut it down.

Planned Parenthood of Indiana and Kentucky joined the suit later on, claiming that Bevin had used these transfer agreements to block its request for a license to provide abortions. After Democratic Gov. Andy Beshear took office in 2019, the two clinics were allowed to provide abortions.

The court wrote that the “district court erred in concluding that Kentucky would be left without an abortion facility,” according to The Associated Press, and dismissed the clinics’ argument that they were at risk of closing. It further said that the law allows clinics to apply for a 90-day waiver if they are denied a licensing agreement, which they could theoretically reapply for and continue to operate.

“(We) must presume that the Inspector General will consider waiver applications in good faith and will not act ‘simply to make it more difficult for (women) to obtain an abortion,’” the ruling read.

In his dissenting opinion, Judge Eric Clay wrote that it “condones the evisceration of the constitutional right to abortion access in Kentucky.”

“At the end of the day, no matter what standard this Court is bound to apply, the majority’s decision today is terribly and tragically wrong,” he wrote.

The American Civil Liberties Union of Kentucky, which represented the clinics, said in a statement that Kentucky’s law means abortion providers have to navigate “needless red tape every 90 days” and warned that the state could be the first without any abortion providers if the governor refuses to grant the waiver.

“This is what it looks like when politicians chip away at protections under Roe — pushing medically unnecessary laws that jeopardize abortion access without ever overturning Roe,” Chris Charbonneau, CEO of Planned Parenthood of Indiana and Kentucky, said in a statement.

“It must be stated that we are in a dangerous moment for abortion rights and what this moment calls for is leadership to put all people before politics and do what’s necessary to ensure every person has access to the care they need and deserve,” Charbonneau added.

Abortion rights have become a hot-button issue this election, as Democrats worry that the impending Senate confirmation of Judge Amy Coney Barrett, a conservative, to the Supreme Court will imperil Roe v. Wade. Barrett’s confirmation would give conservatives a 6-3 supermajority on the court.

Barrett has declined to offer her opinion on the ruling but did say during her confirmation hearing on Tuesday that she doesn’t consider it a superprecedent.