Health Law & Business News

Nevada Leads Opposition to Emergency Abortion Law (Corrected)

April 4, 2019, 4:12 PMUpdated: April 4, 2019, 5:57 PM

Kentucky’s Republican administration shouldn’t be allowed to enforce a law requiring abortion providers to have emergency agreements with hospitals and ambulance companies, state attorneys general say.

A federal trial court decision blocking the law’s enforcement should be upheld, Nevada Attorney General Aaron Ford (D) and 20 other top state attorneys told the U.S. Court of Appeals for the Sixth Circuit April 4. Joining the Nevada-led friend-of-the-court brief are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.

“To have 22 attorneys general sign onto briefs urging the court to protect access to abortion is a testament to just how unlawful this restriction is,” Helene Krasnoff, Vice President of Public Policy Litigation & Law, Planned Parenthood Federation of America said. Krasnoff included Kentucky Attorney General Andrew Beshear, who filed his own brief opposing the law’s enforcement April 3, in her total.

“With a record number of unconstitutional abortion bans advancing in state legislatures, this accountability is necessary as politicians continue to disregard Supreme Court precedent,” Krasnoff said.

Kentucky Right to Life Association didn’t immediately respond to Bloomberg Law’s request for comment.

Checklist Item

The transfer and transport law requires abortion providers to have written agreements with hospitals and ambulance providers to ensure women who experience complications from abortions receive timely transportation to and emergency treatment at nearby hospitals.

Its requirements appear to have been “merely an item on the checklist” for licensing abortion providers for nearly 20 years, trial judge Greg N. Stivers said in his decision blocking the law’s enforcement.

But Gov. Matthew Bevin (R) and Kentucky’s Cabinet for Health & Family Services began demanding strict compliance in 2017. Planned Parenthood of Indiana and Kentucky Inc. is unable to provide abortion services as a result, and EMW Women’s Surgical Center PSC, the state’s only operating abortion clinic, is threatened.

EMW and PPINK won an order blocking the administration from enforcing the law, but Bevin and the cabinet immediately appealed.

Out-of-State Abortion Access

The Nevada-led coalition’s brief focuses on the Bevin administration’s argument that the availability of abortion services in neighboring states should be considered by courts when determining if a state’s abortion regulations impose an undue burden on women seeking abortions.

The possibility women could travel from one state to another to access abortion services isn’t a valid consideration, the states said. There is no cross-border exception to the undue burden test, they said.

Determining the constitutionality of a law in one state based on the availability of abortion services in others, moreover, could detrimentally affect women seeking abortion services in their home states, the brief said. It also could limit the ways states may choose to regulate the services, it said.

Kentucky’s arguments in favor of the law’s enforcement affect “states like Nevada because neighboring states could use our status as a state that allows reproductive healthcare services to restrict a woman’s constitutional right to these services in her own state,” Nevada’s Ford said. His office represents the states.

Indiana, Ohio, Alabama, Arkansas, Idaho, Kansas, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia previously filed a friend-of-the-court brief supporting Kentucky’s enforcement of its emergency transfer and transport law.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is EMW Women’s Surgical Center PSC v. Meier, 6th Cir., No. 18-6161, amicus brief filed 4/4/19.

(Corrected Andrew Beshear's first name. Clarifying that PPINK is still operating, but unable to provide abortions.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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