Trump Judges Pretty Sure Abortion In Kentucky Is Illegal
Late last week, two Trump appointees to the Sixth Circuit Court of Appeals decided to try to close the only two abortion clinics in the state of Kentucky. And with a brand new rightwing zealot about to be added to the Supreme Court, rightwing judges are trying their hardest to get abortion back in front of our highest court.
We don't know yet where it will go from here, but this case could end legal abortion in the state of Kentucky — or even all around the country.
Here's what happened
Like a lot of other states, Kentucky has spent the last few decades trying to put abortion providers out of business by putting more and more restrictions on them until they have no choice but to close. These laws are called TRAP laws, meaning targeted regulation of abortion providers — and they are a favorite tactic of red state legislatures in their war to control women's bodies.
The TRAP law here is similar to the TRAP laws that have been enacted in basically all red states. For decades — and despite the fact that abortion is an incredibly safe medical procedure that rarely requires hospitalization — Kentucky has required abortion providers to have transfer agreements with a local hospital and transport agreements with a local ambulance service. In recent years, the state has put additional regulations on the types of agreements providers must have with the local hospitals and ambulance service.
At the time these additional regulations were put into place, EMW Women's Surgical Center in Louisville was the only remaining abortion provider in the state, and it suddenly found itself unable to comply with the new regulations. This left the only abortion provider in the state without a license. (This year, Planned Parenthood also opened an abortion facility in Kentucky, putting the number of abortion providers for a state with 4.46 million people at two. Planned Parenthood has now also joined this lawsuit, EMW Women's Surgical Center v. Friedlander.)
In 2017, EMW filed this lawsuit, seeking a court order finding the state's restrictions unconstitutional. At the end of a three-day trial last year, District Judge Greg Stivers ruled in favor of the abortion providers, finding "that the scant medical benefits" from the state's regulations “are far outweighed by the burden" they "impose on Kentucky women seeking abortions." Therefore, Judge Stivers found that the challenged laws impermissibly "place a substantial obstacle in the path of women seeking a previability abortion [and] constitute an undue burden on abortion access."
But now, the Sixth Circuit has jumped in to be like, “Nah, this is fine."
Here's [what is supposed to be] the law
The Supreme Court has ruled recently — TWICE — that states need to fucking stop it with the fucking TRAP laws that do nothing to advance women's health. (Okay, I may be paraphrasing.)
In Whole Woman's Health v. Hellerstedt, the Court — which then had Justices Scalia and Kennedy and no Kegs or Gorsuch — found Texas's TRAP laws unconstitutional. Kennedy was ... okay on abortion rights. He wasn't a full-on woman hating psychopath, like the Clarence Thomases and and Samuel Alitos of the world, and sure enough, he saved the day.
Writing for the majority in Whole Woman's Health, Justice Kennedy reaffirmed the Court's earlier abortion jurisprudence and found the Texas law placing medically unnecessary regulations on abortion clinics constituted an "undue burden" on a woman's right to choose. The majority concluded that
Each [of Texas's TRAP laws at issue] places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.
And that should have been that. But, of course, Republicans can just never stop themselves from taking rights away from women and pregnant people. In a stunning act of judicial activism, the Fifth Circuit decided that applying the law as explained by the Supreme Court was optional and allowed the state of Louisiana to implement basically the same restrictions that had been struck down just four years earlier in Whole Woman's Health.
That leads us to June Medical Services v. Russo, one of the handful of cases from last term where John Roberts saved our asses. In June Medical, Roberts joined the plurality to uphold Whole Woman's Health and the Court's earlier abortion jurisprudence, writing:
The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents.
And now, here we are again!
Republicans can just never stop trying to use the law to control women's bodies and personal lives, so if anything, attempts to regulate the bodies of pregnant people have only increased. And now that Amy Bony Carrot is about to be confirmed just days before a presidential election, things are about to get even worse.
Sixth Circuit, you are the fucking WORST
I'm pretty sure I already bitched about this recently, but the Sixth Circuit is just absolute fucking garbage. This federal court of appeals, covering Kentucky, Tennessee, Ohio, and Michigan, is the reason that the Supreme Court finally made marriage equality the law of the land — because it was the only federal circuit court to rule against legal same-sex marriage. In August, it upheld undemocratic ballot access restrictions in Michigan. Last week, it essentially killed a great district court opinion allowing Ohio counties to have more than one ballot dropbox.
The opinion in EMW Women's Surgical Center v. Friedlander was written by Judge Joan Larsen, a Trump appointee, and joined by Chad Readler, another Trump appointee. (Why are they always named Chad?) The opinion is based on a purposefully dense reading of last term's SCOTUS ruling in June Medical. In essence, Judge Larsen, joined by Readler, decided that June Medical, rather than upholding previous precedent, like Roberts explicitly stated he was doing, just means ... well, whatever they want it to mean.
The undue burden test, set forth in the 1992 case Casey v. Planned Parenthood and affirmed in Whole Woman's Health and June Medical, is much stricter than the "rational basis" test that is used to determine the constitutionality of laws that don't restrict a fundamental right. Nonetheless, Judges Larsen and Readler wrote that the bullshit Kentucky law in question was a “rational way" to regulate abortion providers and allowed the rule to go into effect.
Under this setup, both EMW and Planned Parenthood are left in a position where they have to apply for a waiver to the Kentucky TRAP laws every 90 days, hope the state grants it, and cross their fingers that they will be able to continue operating.
Judge Eric Clay, a Clinton appointee, dissented, writing that the anti-woman opinion from the rightwing judges was “terribly and tragically wrong," based on a “deeply flawed" reading of Supreme Court precedent, and finding that Kentucky's TRAP laws are unconstitutional “under any possible applicable test."
The majority directly contravenes both the plurality and concurring opinions in June Medical Services, as well as the majority opinion in Whole Woman's Health. Correctly analyzed, the record and the law definitively demonstrate that Kentucky transfer and transport agreement requirements impose an undue burden under any possible analysis. And the consequences of today's decision could not be more dire. As a result of the majority's deeply flawed analysis, millions of individuals will be altogether deprived of abortion access.
So that fucking sucks
This case is a reminder of everything that is at risk in the coming election.
Donald Trump has already appointed 218 Article III judges — those named in the Constitution. He is about to put an extreme rightwing zealot on the Supreme Court. The only thing that saved abortion rights with June Medical last summer was John Roberts desperately trying to save the credibility of the Court. Amy Coney Barrett and the other four conservatives already on the bench have no such concerns.
This case very well could result in the end of legal abortion in Kentucky, but that's not even the worst-case scenario. The worst-case scenario — and one that Judges Larsen and Readler seem to be pushing for with their terrible decision — is that this case is used by our new, fascist Supreme Court to restrict abortion rights everywhere.
Lord, help us. We need to win this election and pack the fucking courts.
Here's the opinion. It sucks. The dissent is good!
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