Federal appeals court, reversing lower court, upholds state law requiring abortion clinics to have transfer deals with hospitals

Illustration by Kagenmi-Fotolia

A state law requiring abortion clinics to have transfer agreements with hospitals is constitutional, a federal appeals court has ruled, reversing a district judge.

A panel of the U.S. Court of Appeals for the Sixth Circuit ruled 2-1 Friday that "Kentucky may require abortion clinics to obtain signed agreements with hospitals and ambulance services to transport and admit patients in an emergency," reports Deborah Yetter of the Courier Journal.

The majority decision, by two judges appointed by President Trump, struck down the 2018 decision by Barack Obama appointee Greg Stivers that the law created an undue burden for women, violating case law on abortion rights. "He found no hospital or ambulance would refuse to transport or treat a patient in an emergency," Yetter notes.

The majority "said clinics have options, such as seeking time extensions, should they be unable to obtain agreements with hospitals and ambulance services," Yetter writes. Judge Eric Clay, a Bill Clinton appointee, said the majority opinion was "terribly and tragically wrong,"

The opinions are at https://www.dropbox.com/s/xs2bgxrugzpfwaj/Transfer%20agreement%20opinion.pdf.

The 1998 law had been challenged by EMW Women's Surgical Center of Louisville and Planned Parenthood of Indiana and Kentucky, after the administration of Gov. Matt Bevin tried to shut down EMW for not having a transfer agreement. They could appeal to the full Sixth Circuit, which does not have to hear the case.

"The decision comes more than a year after the case was argued before the 6th Circuit panel in Cincinnati," Yetter notes. In the meantime, Kentucky's representation changed; after Democrat Andy Beshear ousted Bevin in the 2019 election and Republican Daniel Cameron won the attorney general's seat that Beshear vacated, Cameron took over defense of the law.

Cameron said in a news release that the appeals court considered a recent Supreme Court decision that supports the ruling. "The Sixth Circuit adopted a requirement that an abortion clinic challenging a law must show that it made a good-faith effort to comply before it can claim that same law is unconstitutional," Cameron said.

The American Civil Liberties Union, which represented EMW, said otherwise. Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, told Yetter, "Abortion providers should not have to jump through medically irrelevant hoops to keep their clinic doors open."

Neither EMW and Planned Parenthood "said they were able to obtain agreements with hospitals and ambulance services acceptable to the Bevin administration," Yetter reports. "Planned Parenthood argued Bevin had pressured local hospitals to refuse to enter such agreements." Now such decisions are up to the Beshear administration, and it has issued Planned Parenthood a license to perform abortions in Louisville.