The EMW Women’s Surgical Center on West Market Street | Photo via Google Maps

Ambulance services and hospitals automatically transport and treat all emergency patients no matter where they come from. That’s what they do. If any kind of medical emergency arises, a call to 911 is all you need to secure ambulance transport to a hospital for immediate treatment.

But under Kentucky law, abortion providers must enter into written agreements with hospitals and ambulance services by which they agree to transport and treat abortion patients who encounter “unforeseen complications.” In other words, abortion clinics must go out of their way to get hospitals and ambulances to promise to do the job they’re already obligated to do.

Why? Because in 1998, the Kentucky General Assembly passed KRS 216B.0435, a law that creates medically unnecessary red tape for abortion clinics. Laws such as this are commonly referred to as “TRAP” laws, or Targeted Regulations of Abortion Providers, and they are purposely designed to complicate and burden the provision of abortion services.

TRAP laws have been used to shut down clinics all over the country. And now, they’re being used by Gov. Matt Bevin to effectively ban abortion in Kentucky.

On March 13, the state Cabinet for Health and Family Services sent a letter to the EMW Surgical Center in Louisville, revoking its license and ordering it to stop providing abortions. Why? Because, the cabinet claims, EMW has deficient “transfer agreements” and is therefore in violation of state law.

The Louisville location of EMW is the only abortion provider currently operating in the state of Kentucky, which has over 2 million women residents.

EMW, represented by attorney Donald Cox and the ACLU of Kentucky, has sued, arguing that the enforcement of KRS 216B.0435 is unconstitutional because it effectively bans abortion. Since the famous Roe v. Wade decision in 1973, a total ban on abortion is something the Supreme Court has repeatedly said states cannot enact.

Much more recently, the Supreme Court has said that medically unnecessary TRAP laws, similar to those in Kentucky, create an unconstitutional “undue burden” on the right of women to decide their own reproductive fate. In a 2016 case called Whole Women’s Health v. Hellerstedt, the court struck down several Texas regulations that required abortion clinics to unnecessarily mimic ambulatory surgical centers and required abortion doctors to maintain hospital admission privileges.

The vast majority of abortions are nonsurgical and most abortion providers never practice medicine in hospitals. The only purpose of the Texas laws was to make it harder for clinics to operate and thus make it harder for women to exercise their reproductive rights.

In the Supreme Court’s words, any unnecessary health regulation with the purpose or effect to “place a substantial obstacle in the path of a woman seeking an abortion” creates an “undue burden” and is constitutionally invalid.

The Kentucky “transfer agreement” law is medically unnecessary because local ambulance services and hospitals already are obligated to provide emergency services for patients who might encounter complications during an abortion procedure at the EMW clinic. And they’re also medically unnecessary because abortion is far safer than many common medical procedures, such as tooth extractions. Complications are incredibly rare.

The only purpose and effect of KRS 236B.0435 is to shut down abortion clinics, which it has been remarkably effective at doing as of late. In 2016, another EMW clinic in Lexington was shut down for allegedly failing to comply with these regulations.

And, that same year, the cabinet sued Planned Parenthood, accusing it of operating a Louisville clinic without a license. Even though that suit was dismissed by Jefferson Circuit Court Judge Mitch Perry, Planned Parenthood was later denied a license despite repeated efforts to comply with the law. After a transfer agreement with UofL Hospital was rescinded when the hospital encountered political pressure, Planned Parenthood obtained new agreements with hospitals in Southern Indiana and Lexington. But the cabinet rejected those agreements as too remote, even though KRS 235B.0435 imposes no geographical limitations.

Louisville’s Planned Parenthood cannot currently provide abortion services because the cabinet has denied the necessary license.

Gov. Bevin has obviously made it his mission to use Kentucky’s TRAP laws as a weapon against women’s reproductive rights. If he gets his way, every clinic in the state of Kentucky will be closed, and many thousands of Kentucky women will have to seek abortions in neighboring states. This amounts to a de facto ban on abortion. Because the Supreme Court has not yet ruled on the specific kinds of TRAP laws now at issue, it is certainly possible that the Kentucky lawsuit could eventually be heard, and the laws struck down.

In fact, even if the EMW location in Louisville wins its suit and remains in operation, just having one clinic for a state the size of Kentucky could still be unconstitutional. In the Whole Women’s Health case, the Supreme Court held that regulations that result in “fewer doctors, longer waiting times, and increased crowding” at clinics, or force patients to drive “more than 150 miles” just to get an abortion, also create the kind of “undue burden” that the Constitution prohibits.

With only the EMW clinic in Louisville available to them, women from Pikeville or Paducah must already drive over 200 miles to obtain an abortion in Kentucky. This is just one burden piled upon many others. For example, the Kentucky General Assembly just passed a law requiring doctors to perform medically unnecessary ultrasounds.

No matter how much they hate abortion, Bevin and his anti-choice allies simply cannot ban it, either outright or through unnecessary regulation. And it is shamelessly hypocritical for the same governor who started a “Red Tape Reduction Initiative” (with its own fancy website!) to exploit regulatory red tape just to infringe the constitutional rights of every woman in Kentucky.

Disclosure: The author, along with other attorneys, represented Planned Parenthood in the 2016 lawsuit filed against it by the Cabinet for Health and Family Services.

Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.