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Kentucky Abortion Law Invalid, Two New Provider Suits Say (2)

April 14, 2022, 2:28 PMUpdated: April 14, 2022, 5:50 PM

Planned Parenthood Federation of America and the American Civil Liberties Union sued Kentucky Thursday to invalidate a new law that, they say, effectively bans abortion in the state.

The law is unconstitutional based on U.S. Supreme Court precedent that gives people the right to end a pregnancy before a fetus would be able to live outside the womb, the complaints filed in the U.S. District Court for the Western District of Kentucky say.

“The General Assembly passed HB 3 to protect life and promote the health and safety of women,” Kentucky Attorney General Daniel Cameron (R) said in an email to Bloomberg Law. He is “prepared to earnestly defend this new law against the legal challenge from Planned Parenthood and the ACLU,” he said.

The law took effect immediately after state lawmakers voted Wednesday to override Gov. Andrew Beshear’s (D) April 8 veto.

Kentucky has been a hotbed for abortion litigation in recent years. Currently, the U.S. Court of Appeals for the Sixth Circuit is considering the validity of provisions that ban abortion after six weeks and on the basis of a fetus’s race, gender, or diagnosis of a genetic abnormality.

The newest law, known as HB 3, bans abortions after 15 weeks of pregnancy. The provision is modeled on a Mississippi law currently under consideration by the U.S. Supreme Court. Anti-abortion advocates are hopeful the nation’s top court will overturn Roe v. Wade in the course of upholding Mississippi’s 15-week ban.

A second provision imposes numerous regulations on clinics where abortions are performed. It’s impossible to comply with those restrictions because the state hasn’t yet created the mechanisms for doing so, the groups say.

For example, the law imposes registration requirements on medication abortion providers, but the state hasn’t set up a registration process, the groups say. Medication abortion involves the self-ingestion of two pills that cause the body to expel fetal tissue.

The law also requires egregious reporting requirements that would violate patient privacy, and requires clinics to cremate fetal remains, the groups say.

Abortion providers would be forced to immediately stop offering their services if the court declines to block the law from taking effect, the groups say.

EMW asserted the claims in a complaint supplementing its earlier challenge to Kentucky’s six-week and reason abortion bans. The laws should be considered together to promote the interests of judicial economy and obtain complete relief for the plaintiffs, as they involve the same arguments, EMW says.

The provider asked for an emergency temporary restraining order or preliminary injunction to block the law from taking effect. The case is assigned to Judge David J. Hale.

Planned Parenthood’s suit, filed on behalf of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, says the new law will affect 1 million people of reproductive age throughout Kentucky.

The Louisville Planned Parenthood clinic faces an immediate threat of criminal penalties, civil liability of up to $1 million, and the potential loss of its facility and medical licenses if it doesn’t comply with the law’s provision, the complaint says.

The provider is seeking a temporary restraining order or preliminary injunction blocking the law’s enforcement. The case is assigned to Judge Rebecca Grady Jennings.

Crowell & Moring LLP, Planned Parenthood Federation of America, and Kaplan Johnson Abate & Bird LLP represent the provider.

The ACLU’s challenge is on behalf of Louisville’s EMW Women’s Surgical Center, which is also represented by O’Melveny & Myers LLP and Michele Henry of Craig Henry PLC.

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

EMW’s case is EMW Women’s Surgical Ctr., PSC v. Friedlander, W.D. Ky., No. 19-cv-178, supplemental complaint filed 4/14/22.

Planned Parenthood’s case is Planned Parenthood Great Nw., Haw., Alaska, Ind., & Ky, Inc. v. Cameron, W.D. Ky., No. 22-cv-198, filed 4/14/22.

(Updated paragraphs nine and 13 through 15 to add information about Planned Parenthood's complaint.)

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

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com