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Injunction Against Kentucky’s New Abortion Ban Stays in Place

May 27, 2022, 4:06 PM

A preliminary injunction against Kentucky’s new ban on abortions after a woman has been pregnant for 15 weeks will stay in place, a federal court in the state said.

The US District Court for the Western District of Kentucky granted Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky Inc., and EMW Women’s Surgical Center PSC, the state’s only two abortion providers, the preliminary injunction because Kentucky hasn’t adopted the procedures to implement the ban.

The Kentucky attorney general asked the court to stay the preliminary injunction, saying it was improperly granted. But the opinion issued Thursday by Judge Rebecca Grady Jennings rejected the attorney general’s arguments, saying there was no likelihood he’d win on the merits.

The attorney general said that he didn’t have a fair opportunity to respond before the injunction was issued and that there were procedural irregularities. But the court said that it didn’t “deviate from the ordinary procedures of deciding a motion for injunctive relief and provided the Attorney General with multiple opportunities to respond to facts and arguments put into the record by the Plaintiffs.”

The attorney general also argued that the court improperly shifted the factual burden in the case to the state. The plaintiffs presented sufficient facts to establish the need for the preliminary injunction, and if the attorney general chose not to refute those facts, or didn’t convince the court to reject them, “that doesn’t mean that the Court shifted the burden to the Attorney General,” it said.

The court also rejected the attorney general’s argument that it made other legal errors when it issued the preliminary injunction. The court didn’t misapply the Sixth Circuit standard for challenges to abortion laws, the injunction is narrowly tailored based on the representations made by the state, and the ordinary rules of statutory interpretation were followed, it said.

Because multiple provisions of the ban are unconstitutional, the state won’t be harmed by the injunction, the court said. But the public will be harmed if the attorney general’s request for a stay is granted, it said.

Crowell & Moring LLP, Planned Parenthood Federation of America, and Kaplan Johnson Abate & Bird LLP represented Planned Parenthood. The American Civil Liberties Union and Craig Henry PLC represented EMW.

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 Planned Parenthood Gr. Nw., Hawaii, Alaska, Ind., & Ky., Inc. v. Cameron, 2022 BL 182982, W.D. Ky., No. 3:22-cv-198-RGJ, 5/26/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com