Judge blocks state’s new anti-abortion law, pending study of it

U.S. District Judge Rebecca Grady Jennings

Kentucky Health News

A federal judge has blocked Kentucky’s broad, new anti-abortion law, saying it has so many restrictions that she needs time to evaluate the ability of the state’s two abortion clinics to follow them.

District Judge Rebecca Grady Jennings issued a temporary restraining order, saying “The Court restrains enforcement of the entirety of HB 3 at this time, as it lacks information to specifically determine which individual provisions and subsections are capable of compliance.”

The law was passed as House Bill 3 of the recently completed session of the Republican-controlled General Assembly, over the veto of Democratic Gov. Andy Beshear, who said it was unconstitutional and lacked an exception for cases of rape or incest. The bill had an emergency clause that made it take effect immediately, which the clinics said made compliance even more difficult.

Jennings ruled in a lawsuit filed by a unit of Planned Parenthood, which has an abortion clinic in Louisville and called the law “tantamount to a ban on abortion.” A similar suit was filed by the American Civil Liberties Union of Kentucky on behalf of EMW Women’s Surgical Center of Louisville, the state’s only other abortion clinic.

Both clinics stopped providing abortions when the law took effect April 13, saying it was impossible for them to comply with it immediately. “The law has put Kentucky in the national spotlight for becoming the first state to eliminate access to all abortion services,” notes Deborah Yetter of the Courier Journal, adding that they are resuming services.

Jennings ruled that the law makes any abortion unlawful until the state Cabinet for Health and Family Services creates a system and forms for compliance. “Because [Planned Parenthood] cannot comply with HB 3 and thus cannot legally perform abortion services, its patients face a substantial obstacle to exercising their rights to a pre-viability abortion,” and that us an “undue burden,” making it constitutionally questionable, she wrote.
Jennings made her restraining order effective for two weeks, during which she will hold a hearing on the plaintiffs’ motions for a preliminary injunction to keep the law from taking effect.

The law strengthens parental-consent rules, increases reporting rules, requires aborted fetuses to be cremated or buried through pre-arrangement with funeral homes, which the clinics said will be reluctant to make for fear of retribution.

It also prohibits abortion after the 15th week of pregnancy, mimicking a Mississippi law that is awaiting a decision from the U.S. Supreme Court, and bans mailing medications that have become the most common way to end a pregnancy in Kentucky, a means recently approved by the U.S. Food and Drug Administration. “It requires the state Cabinet for Health and Family Services to create a new, extensive system to certify, register and monitor anyone who produces, ships or dispenses the medication,” Yetter notes. Beshear noted that the legislature provided no money for the system.

Planned Parenthood Great Northwest CEO Rebecca Gibron said in a press release that her group was “grateful” for Jennings’ order: “This is a win, but it is only the first step. We’re prepared to fight for our patients’ right to basic health in court and continue doing everything in our power to ensure abortion access is permanently secured in Kentucky.”

Attorney General Daniel Cameron, a Republican who may run for governor against Beshear in 2023, said he was disappointed in the ruling. He had argued against a restraining order, notes Alex Acquisto of the Lexington Herald-Leader.
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