Bench Memos

Law & the Courts

Noteworthy Sixth Circuit Ruling in Kentucky Abortion Case

On Friday, a divided panel of the Sixth Circuit ruled (in EMW Women’s Surgical Center v. Planned Parenthood) that a district court had improperly enjoined the operation of Kentucky statutory and regulatory provisions that require abortion facilities to have transfer and transport agreements with hospitals and ambulance services. Judge Joan Larsen, joined by Judge Chad Readler, wrote the impressive majority opinion. Judge Eric Clay dissented.

Here’s a brief overview of the majority opinion:

In June Medical Services v. Russo (2020), the five members of the majority disagreed on how the “undue burden” test of Planned Parenthood v. Casey applies. Under the Supreme Court’s rule in Marks v. United States (1977), when no opinion in a Supreme Court case garners a majority, lower courts are to treat as the Court’s holding the position taken by the justice or justices who concurred in the judgment on the narrowest grounds. That means that the Chief Justice’s concurring opinion in June Medical sets forth that case’s holding. (Pp. 12-22.)

Under the Chief Justice’s controlling opinion, the district court should not have attempted to weigh the benefits of abortion regulations against their burdens. We instead need only consider whether a challenged abortion regulation (a) is reasonably related to a legitimate state interest, and (b) imposes a substantial obstacle in the path of a woman seeking an abortion.

The requirements for transfer and transport agreements are reasonably related to the legitimate state interest in determining in advance what duties each party has in an emergency and how the patient’s information will be transmitted from the abortion facility to the hospital. (Pp. 23-26.)

The district court held that the regulations would impose a substantial obstacle by leaving Kentucky without any operating abortion facility. But the district court wrongly assumed that the existing abortion facilities could not avail themselves of quarterly waivers. (Pp. 26-34.)


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