Federal judge blocks Kentucky abortion law, citing compliance problems

March for Life best signs Yuni and Natalie Wu of the Lexington, Kentucky area, at the March for Life in Washington, D.C., Jan. 21, 2022. | Katie Yoder/CNA

Abortions have resumed in Kentucky after a federal judge temporarily blocked a multi-faceted abortion restrictions law and said the state needs to do more to ensure those affected by it can comply.

The two abortion clinics in the state had challenged the law, saying they couldn’t meet the requirements immediately because the state had not established clear guidelines.

U.S. District Judge Rebecca Grady Jennings, a President Donald Trump appointee, blocked the law in its entirety in an April 21 restraining order, saying she was unable “to specifically determine which individual provisions and subsections are capable of compliance.” She said her order would not prevent the state from making the necessary regulations, the Associated Press reported.

“We are disappointed to see life-saving protections for Kentucky mothers and unborn children blocked again,” Sue Liebel, state policy director for the Susan B. Anthony List, a national pro-life advocacy group, said April 21. “This law would spare hundreds of babies from the excruciating pain of late abortions and safeguard women’s health from the reckless expansion of abortion drugs by mail.”

The law creates a certification and monitoring system that records in detail all abortions in the state and all doctors who perform abortions.

Noncompliance with its restrictions and reporting requirements for abortion clinics can result in significant fines, felony penalties, and loss of licenses for physicians and facilities, the Lexington Herald-Leader reports. Critics of the reporting requirements said they are impossible to implement without more funding, and effectively end access to abortion in Kentucky.

The bill took effect immediately on April 14 when the Republican-controlled legislature voted to override the veto of Gov. Andy Beshear, a Democrat.

“The state legislature overwhelmingly overrode pro-abortion Gov. Beshear to stand up for the will of Kentuckians,” said Liebel. “Unfortunately, decades of radical U.S. Supreme Court precedents have shackled lawmakers and imposed abortion on demand until birth nationwide.”

She voiced hope that the U.S. Supreme Court, expected to revisit pro-abortion rights legal precedent this year, “will soon allow elected leaders in every state to enact commonsense laws that save lives and reflect the values of the people.”

The Kentucky law also bars abortion after 15 weeks into pregnancy. It raises standards for minors seeking an abortion. Women seeking abortion-causing pills must have a doctor’s examination first, and the pills cannot be distributed by mail. The law requires fetal remains to be cremated or buried.

Attorneys for Planned Parenthood and EMW Women’s Surgical Center filed separate legal challenges to the law, but both organizations had stopped performing abortions when the law took effect.

“We are disappointed that the court chose to temporarily halt enforcement of H.B. 3,” Kentucky Attorney General Daniel Cameron, a Republican, said on Twitter. “This law is constitutional, and we look forward to continuing to defend it.”

Rebecca Gibron, CEO of Planned Parenthood in Kentucky, welcomed the judge’s decision as “a win, but it is only the first step.”

“We’re prepared to fight for our patients’ right to basic health in court and to continue doing everything in our power to ensure abortion access is permanently secured in Kentucky,” said Gibron, according to the Associated Press.

Pro-life advocates in the state voiced disappointment with the decision.

"From the beginning, we have acknowledged that House Bill 3 would not end abortion in Kentucky,” said Addia Wuchner, executive director of Kentucky Right to Life. “H.B. 3 is a multifaceted bill that reflects our continued commitment to Kentucky’s most vulnerable citizens, the unborn, as well as advocating for justice and safe medical practices for their mothers.”

At the time of the veto override, Marjorie Dannenfelser, president of the Susan B. Anthony List, praised the legislation.

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“Like most Americans, Kentuckians want commonsense safeguards for unborn babies and their mothers and reject abortion on demand,” she said.

The Charlotte Lozier Institute, the research arm of the Susan B. Anthony List, estimated that in 2020 there were 344 abortions performed in Kentucky at 15 weeks or later into pregnancy. That year, the number of medical abortions in Kentucky rose 13% to make up 51% of the 4,104 abortions.

The Susan B. Anthony List cites a November 2021 study in the journal Health Services and Managerial Epidemiology which said emergency room visits related to the use of chemical abortion drugs increased by over 500% from 2002 to 2015.

Among the states with legal safeguards against mail-order abortions are Arizona, Arkansas, Indiana, Montana, Ohio, Oklahoma, South Dakota, and Texas

This November, Kentucky voters will consider the proposed Constitutional Amendment 2, which would say that the state constitution does not provide a right to abortion and does not guarantee public funding of abortion. The Kentucky Catholic Conference has backed the amendment.

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