Court Upholds Ky. Pro-Life Law Protecting Women from 'Unsanitary' Abortion Clinics

Michael Foust | Contributor | Monday, October 19, 2020
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Court Upholds Ky. Pro-Life Law Protecting Women from 'Unsanitary' Abortion Clinics

A U.S. federal appeals court on Friday revived a Kentucky pro-life law by ruling it is not unconstitutional for the state to require that abortion clinics have agreements with a local hospital and a local ambulance service in the event medical complications arise.

The case involves a 1998 Kentucky law that requires abortion facilities to obtain transfer agreements with a local hospital and transport agreements with a local ambulance service. Planned Parenthood joined a Louisville abortion clinic in suing the state to strike down the restrictions, and a district court in 2018 sided with abortion providers, saying the law places an undue burden on women and has few “medical benefits.”

But on Friday, the U.S. Sixth Court of Appeals, in a 2-1 decision, reversed the lower court.

“We cannot say that laws requiring abortion facilities to have transfer and transport agreements with a local hospital are not reasonably related to a legitimate government end,” Judge Joan Larsen wrote in a majority opinion joined by Judge Chad Readler. Both were nominated by President Trump. Judge Eric L. Clay, who was nominated by President Clinton, dissented.

The state’s purpose in passing the law, Larsen wrote, was to treat “patients with unforeseen complications related to an abortion facility procedure.” Larsen further noted the 1998 law was passed due to “concerns about the appalling, unsanitary conditions in some Kentucky abortion facilities.”

Larsen’s opinion heavily relied upon Chief Justice John Roberts opinion from March in another abortion rights case, June Medical Services LLC v. Russo. Although pro-lifers lost that March case, Roberts’ opinion in the majority was seen as weakening pro-choice legal arguments and potentially laying the groundwork for future pro-life victories.

“Under the Chief Justice’s controlling opinion, a law regulating abortion is valid if it satisfies two requirements,” Larsen wrote. “First, it must be ‘reasonably related’ to a legitimate state interest. … Second, the law must not ‘ha[ve] the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”

Both requirements are met in the current case, Larsen wrote. She noted Roberts disagreed with the court’s liberal bloc, which said the undue burden test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

“Instead,” Larsen wrote, quoting Roberts, “‘the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with’” a 1992 case, Casey v. Planned Parenthood.

“The district court’s permanent injunction was based on the assumption that the regulations requiring transport and transfer agreements would impose an undue burden on the right to abortion by leaving Kentucky without an operating abortion facility,” Larsen wrote. “That conclusion cannot be sustained.”

Larsen remanded the case to the district court for further proceedings.


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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe Toronto Star and the Knoxville News-Sentinel.