Kentucky abortion providers want to dismiss challenge against near-total abortion ban

Another lawsuit remains pending in Jefferson Circuit Court

By: - June 20, 2023 6:54 pm

Planned Parenthood’s Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

In a surprise move, Kentucky’s two licensed abortion providers have asked a judge to dismiss their case seeking to overturn the state’s near-total ban on abortion.

The joint motion on behalf of Planned Parenthood and EMW Women’s Surgical Center comes on the eve of the first anniversary of the June 24, 2022, U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 decision establishing abortion as a federal constitutional right.

Their motion, if granted by Jefferson Circuit Judge Mitch Perry, would for now bring an end to the clinics’ efforts to restore abortion rights in Kentucky. It was filed by Planned Parenthood and the American Civil Liberties Union, which represents EMW.

Still, “the fight is far from over,” a Planned Parenthood official said Tuesday.

The clinics are seeking to reserve the right to pursue the case, when appropriate.

“It’s unfortunate that it falls upon the anniversary of Roe v. Wade,” said Tamarra Wieder, public affairs and policy director for the Planned Parenthood region that includes Kentucky. “That hurts a little bit more.”

Attorney General Daniel Cameron, an anti-abortion Republican who has been defending the two state laws under challenge, said in a statement that his office was “gratified” by the abortion providers’ motion to dismiss and added that “the elective abortion industry is out of business” in the state.

“A society is judged by how it treats its most vulnerable — especially the unborn,” he said. “Today is a reminder that every life deserves to live. My office will always defend and enforce Kentucky’s pro-life laws passed by our General Assembly.”

EMW Women’s Surgical Center in Louisville. (Kentucky Lantern photo by Deborah Yetter)

The parties in the case had been scheduled to return to court June 28 to update Perry on their progress.

The U.S. Supreme Court decision last year ended access to almost all abortion services in Kentucky, where a “trigger law” took effect banning the procedure in the event of such a ruling. A second state law banning abortion after about six weeks also took effect.

EMW and Planned Parenthood filed a lawsuit last June in state court arguing that the state constitution provides reproductive rights to women including to terminate a pregnancy.

But a state Supreme Court ruling earlier this year sharply limited the providers’ right to pursue the case, finding they lack “standing” to purse some of their claims, a finding that meant they had to find a patient affected by the law and willing to sue.

In a news release Tuesday, EMW and Planned Parenthood said they asked the court to dismiss their challenge to the two laws restricting abortion because of that ruling.

“We moved to dismiss this case because earlier this year, the Kentucky Supreme Court issued an extraordinary ruling that took away health care providers ability to defend the rights of their patients, upending decades of precedent,” the two health providers said in a statement.

The state Supreme Court decision that the plaintiffs lacked standing left them searching for a patient who had been adversely affected and who was willing to join the lawsuit challenging Kentucky’s abortion laws.

In previous litigation, courts generally have allowed abortion providers to bring cases on behalf of patients.

In a joint statement, Planned Parenthood and EMW said they have not given up and will continue seeking such a patient willing to come forward, allowing them to file a new challenge to the laws.

“We remain open to hearing from patients who are in Kentucky and need access to abortion,” the statement said.

It added that “our phone lines are open” and urged potential plaintiffs to call or text 617-297-7012.

Kentucky’s two abortion laws permit no exceptions for pregnancies from rape or incest or severe fetal anomalies in which a fetus is unlikely to survive. They allow abortion only to save the life of the pregnant patient or prevent disabling injury.

Last year, Perry agreed Kentucky’s constitution appears to protect a woman’s right to abortion and agreed to temporarily block enforcement of the two laws while the lawsuit was pending.

However, an appeals court judge reversed the decision and the case moved to the state Supreme Court, which in February declined to block enforcement of the two laws. The high court sent the case back to Perry for further action.

ACLU lawyer Heather Gatnarek told Perry at a hearing in April the plaintiffs were having difficulty finding a patient willing to join the case.

The Kentucky Supreme Court ruling on standing left the providers in the difficult spot of finding a patient seeking to end a pregnancy and willing to join a major lawsuit even while seeking abortion care in another state, Wieder said.

“They are in a medical crisis and trying to get care,” Wieder said. “It is outrageous.”

While dismissal of the case would end, for now, Planned Parenthood and EMW’s challenge to the law, another remains pending in Jefferson Circuit Court.

Three Jewish women from Louisville have filed a lawsuit challenging Kentucky’s abortion ban, which states life begins at conception, arguing it violates their religious freedom under state law.

In the lawsuit, they argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth. They also argue it limits their right to other care, such as in-vitro fertilization.

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Deborah Yetter
Deborah Yetter

Deborah Yetter is an independent journalist who previously worked for 38 years for The Courier Journal, where she focused on child welfare and health and human services. She lives in Louisville and has a master's degree in journalism from Northwestern University and a bachelor's degree from the University of Louisville.