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Indiana, Ohio leading 6th Circuit appeal supporting law regulating Kentucky abortion clinics

February 7, 2019

The Hoosier state has filed its second abortion-related appeal this week, this time urging a federal appeals court to uphold states’ authority to regulate abortion clinics.

Indiana Attorney General Curtis Hill joined forces with Ohio Attorney General Dave Yost to lead a 16-state coalition to support the constitutionality of a Kentucky law requiring abortion clinics to maintain transfer-and-transportation agreements with local hospitals and ambulance services. The coalition argues those arrangements create safeguards and secure access to high-level medical care for patients in the event of an emergency during an abortion procedure.

Hill’s office said in a press release that the Kentucky provision existed “without issue” for 19 years before hospitals in the Louisville area disassociated themselves from abortion clinics and ended the transfer-and-transport agreements. The clinics then filed a lawsuit claiming the law was unconstitutional.

The U.S. District Court for the Western District of Kentucky ruled in favor of EMW Women’s Surgical Center and other plaintiffs, finding the agreements to be an undue burden on women seeking abortions. With this week’s appeal, the 16-state coalition is urging the 6th Circuit Court of Appeals to overturn that ruling.

“Under the Constitution, states have the authority to pass and enforce reasonable laws,” Hill said in a Thursday statement. “Requiring abortion clinics to maintain basic health and safety standards falls well within a state’s prerogative.”

In its brief, the coalition urges the circuit court to reverse the district court’s decision, arguing that courts applying the undue-burden analysis to generally applicable law must “consider the laws’ generally applicable benefits in applying the undue-burden test.” The states also contend the district court misapplied the standard for facial challenges and improperly afforded constitutional protection to EMW’s business plan.

Hill’s office further stated that rather than being overregulated, Kentucky abortion clinics face fewer rules than other medical facilities, noting the state’s ambulatory surgical centers must maintain the transfer-and-transport agreements and must staff their facilities with physicians who have admitting privileges at area hospitals.

Earlier this week Indiana filed another abortion-related appeal, that one urging the U.S. Supreme Court to overturn a preliminary injunction blocking a state abortion law requiring women to get an ultrasound at least 18 hours before the procedure.

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