This week, Kentucky will defend state regulations designed to make it more difficult to open and operate abortion clinics. Known as "TRAP laws," these regulations target abortion providers with medically unnecessary hurdles to operation. Two Louisville abortion providers, Planned Parenthood and the private EMW Women's Surgical Center, are suing, arguing that the state is using unconstitutional regulations to either keep them out of business (PP) or shut them down (EMW).
The key regulation at issue in Kentucky is one that requires abortion clinics to acquire "written agreements" with a "licensed acute-care hospital" and a "local ambulance service" to care for clinic patients who may need emergency treatment beyond what the clinic itself can provide. The regulation does not specify what content is required in these written agreements, nor does it specify how close a hospital must be to the clinic for an agreement to be valid.
There are several problems with this regulation. First, hospitals and ambulance services are required by law to treat and transport emergency patients no matter where they come from. If a patient at the downtown Louisville location of EMW were to face a serious emergency, the clinic need only call 911 and a Louisville Metro EMS ambulance would arrive to take her to the nearest hospital, which is just a few blocks away. This would happen automatically, no "written agreements" necessary. So the written agreement regulation is medically unnecessary.
Second, if a hospital and ambulance service would be available anyway, what's the problem with getting a written agreement that confirms this? It should be simple, right? Well, Governor Matt Bevin has allegedly used his power to pressure Louisville hospitals not to enter into written agreements with abortion providers. For example, Planned Parenthood and the University of Louisville Hospital claim that that hospital rescinded a written agreement with the PP clinic after Bevin and his underlings directly threatened the hospital's various funding sources. PP then reached out to hospitals in southern Indiana (less than a mile away, just across the Ohio River) and in Lexington (50 minutes away) but the state has rejected those as too remote (even though the regulation specifies no geographical limits).
So PP is left without the paperwork necessary to get a license. And now EMW is trying to renew its license and is facing the same problems.
Regulations like these are specifically designed to interfere with a woman's right and access to abortion. Similar regs have been struck down by the U.S. Supreme Court because they create an "undue burden" on the autonomy of women without providing any legitimate medical benefit. Just last year, the Court struck down Texas regulations (and similar ones in other states) that required abortion providers to have hospital admitting privileges and required the clinics to be equipped as if they are "ambulatory surgical centers," even though they are not.
All of these schemes are part of a desperate flanking effort by conservative politicians to ban abortion without actually banning it, which they cannot do outright under current Supreme Court case law dating all the way back to 1974's Roe v. Wade decision.
Speaking of Roe, immediately after that decision, Kentucky passed new laws allowing and regulating abortion, but very begrudgingly. It set strict rules on who could perform abortions, where they could perform them, and what hoops women had to jump through to get them.
These laws are of varying coherence. One of the more head-scratching examples comes from KRS 311.710, the "Legislative Findings" section, first passed just after Roe. Subsection 1 reads:
How, exactly, the Commonwealth can ensure that an unborn child continues its "life after its abortion" is not explained in the law. Nor is it explained in Nebraska law, which passed a nearly identical statute around the same time. The Nebraska legislature uses stronger language to denounce abortion than Kentucky does, and it identifies Roe v. Wade by the date it was decided. Kentucky is more subtle, but does conclude the statute with a promise - if the Supreme Court changes its mind about this silly "woman's right to privacy" thing, you can bet the Commonwealth will ban abortion again.
It is the present intention of the General Assembly to protect the valid and compelling interests of the Commonwealth and its inhabitants without unduly burdening a woman's constitutional privacy rights as delineated by the courts. If, however, the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.
So far that hasn't happened (if not without trying), and, presuming that the federal courts maintain their current position on TRAP schemes, Kentucky's attempted end run around Roe and its progeny via unnecessary and burdensome regulations will soon be eliminated, frustrating once again the "declared policy" of the Commonwealth.