Appeals court upholds Kentucky law requiring abortion facilities to have hospital transfer agreements

Last week, the 6th U.S. Circuit Court of Appeals upheld a 1998 law requiring abortion facilities in Kentucky to obtain “a written agreement with a licensed acute-care hospital capable of treating patients with unforeseen complications related to an abortion facility procedure” and to maintain “a written agreement with a licensed local ambulance service” to transport those botched abortion patients to the hospital.

The majority opinion noted the background history leading up to the passage of the 1998 law, writing that “In 1998, the Kentucky General Assembly imposed new licensing requirements on abortion providers in response to concerns about the appalling, unsanitary conditions in some Kentucky abortion facilities.” Notably, the Kentucky law requirements apply to all ambulatory surgical centers across the state, and do not unduly discriminate against abortion facilities. Previous articles from Live Action News like this one note that the law was not actually actively enforced until 2016.

After one of Kentucky’s two abortion facilities closed in 2017 due to both operating without a license and “unsanitary” conditions causing hazards to patient safety, both the remaining facility (EMW Women’s Surgical Center in Louisville) and Planned Parenthood of Indiana and Kentucky sued the state. The lawsuit alleged that the law imposed “a substantial obstacle on women seeking abortions,” and in 2018 a U.S. federal judge agreed with this assessment. But on October 16th, the Appeals Court upheld the original law, noting that abortion facilities unable to obtain transfer agreements with area hospitals and ambulance services have the option of applying for a 90-day waiver from the state.

READ: Kentucky legislators pass pro-life bills, slam governor for failing to restrict abortion during COVID-19

The dissenting opinion in the 2-1 case, written by Judge Eric Clay, claimed that the law “condones the evisceration of the constitutional right to abortion access in Kentucky.” Kentucky’s state constitution makes no mention of abortion.

Currently, two Kentucky facilities offer abortions. EMW Women’s Surgical Center continues to offer surgical abortions up through 21 weeks and 6 days, according to the clinic’s website, as well as abortion pills up through 9 weeks and 6 days. According to CheckMyClinic.org, the facility has previously been cited for failure to maintain documentation on staff in-services and training, improper storage of narcotics to “prevent use by unauthorized personnel,” use of multiple expired supplies and medications (some by up to 12 years), and more. The other operating abortion facility is Planned Parenthood in Louisville, which offers both the abortion pill and surgical abortions, according to its website.

Also this year, a federal appeals court found a law banning dismemberment abortions in Kentucky to be unconstitutional, and Kentucky’s Governor Andy Beshear vetoed a bill that would have banned abortions in the state during the COVID-19 pandemic and also offered protections to born alive abortion survivors.

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