United States District Court, W.D. Kentucky, Louisville Division
EMW WOMEN'S SURGICAL CENTER, P.S.C., et al. PLAINTIFFS
ADAM W. MEIER et al. DEFENDANTS
MEMORANDUM OPINION INCORPORATING FINDINGS OF FACT AND
CONCLUSIONS OF LAW
H. McKinley Jr., District Judge
matter came before the court for a bench trial that commended
on November 13, 2018 and concluded on November 19, 2018. The
court has reviewed the parties' post-trial briefs and the
evidence at trial, and its findings of facts and conclusions
of law are set forth below.
a Kentucky abortion facility and its two board-certified
obstetrician-gynecologists (“OB-GYN”) Drs. Ashlee
Bergin and Tanya Franklin, challenge the constitutionality of
a recently enacted Kentucky abortion law. The law at issue
regulates second-trimester abortion procedures and is
included in House Bill 454 (“H.B. 454” or
“the Act”). Plaintiffs allege that the Act's
requirement that Kentucky physicians perform a fetal-demise
procedure prior to performing the evacuation phase of a
standard Dilation and Evacuation (“D&E”)
abortion-the principal second-trimester abortion method
nationally-is a substantial obstacle to a woman's right
to choose a lawful pre-viability second-trimester abortion.
As such, Plaintiffs argue H.B. 454 is unconstitutional. More
specifically, the individual Plaintiffs assert that, if the
Act goes into effect, they will stop performing standard
D&E abortions altogether due to ethical and legal
concerns regarding compliance with the law, thereby rendering
abortions unavailable in the Commonwealth of Kentucky
starting at 15.0 weeks from the date of a woman's last
menstrual period (“LMP”). Defendants respond that the
Act has neither the purpose nor the effect of placing an
undue burden on a woman seeking a second-trimester abortion.
Rather, the Defendants contend that H.B. 454 appropriately
advances the Commonwealth's interests while leaving open
alternative means of obtaining an abortion-specifically, by
receiving an additional medical procedure to cause
fetal-demise prior to the evacuation phase of a standard
D&E. The proposed alternative methods for physicians to
induce fetal-demise are threefold: (1) digoxin injection; (2)
potassium chloride injection; and (3) umbilical cord
transection. The Commonwealth maintains that these procedures
are safe, available, and reliable methods for causing
fetal-demise. Thus, the Commonwealth claims that H.B. 454
does not operate as an undue burden on a woman's right to
a second-trimester pre-viability abortion and is thus a
constitutional abortion regulation.
day the Act was signed, Plaintiffs filed this lawsuit
challenging it as a violation of Plaintiffs'
patients' Fourteenth Amendment rights to privacy and
bodily integrity. [DN 1 ¶¶ 46- 49]. Thereafter,
Plaintiffs filed a Motion for a Temporary Restraining Order
and Preliminary Injunction and the Court convened a
telephonic hearing on the Motion. [DN 6]. During the
telephonic hearing, the parties agreed to the entry of a
consent order suspending enforcement of the Act until the
Court ruled on Plaintiffs' motion for preliminary
injunctive relief. [DN 24]. The Court later issued an order
requiring the parties to continue abiding by the terms of the
consent order until the trial on the merits. [DN 56].
454 states in relevant part:
No person shall intentionally perform or . . . attempt to
perform . . . an abortion on a pregnant woman that will
result in the bodily dismemberment, crushing, or human
vivisection of the unborn child when the probable
post-fertilization age of the unborn child is eleven (11)
weeks or greater, except in the case of a medical emergency.
§ 1(2)(a)-(b). “Bodily dismemberment, crushing, or
human vivisection” is further defined by H.B.454 as any
procedure in which a person, with the purpose of causing the
death of an unborn child, dismembers the living unborn child
and extracts portions, pieces, or limbs of the unborn child
from the uterus through the use of clamps, grasping forceps,
tongs, scissors, or a similar instrument that . . . slices,
crushes, or grasps . . . any portion, piece, or limb of the
unborn child's body to cut or separate the portion,
piece, or limb from the body.
Id. § 2(18). A “medical emergency”
exception is provided for under this framework. Such an
emergency is defined as a condition that “so
complicates the medical condition of a pregnant female as to
necessitate the immediate abortion of her pregnancy to avert
her death or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily
function[.]” K.R.S. § 311.720(9); see Act §
1(1)(b). A physician found to be in violation of the Act
commits a Class D felony, subjecting him or her to punishment
of up to five years' imprisonment, KRS §
532.060(2)(d), and can also expose clinics and physicians to
adverse licensing and disciplinary action. See KRS §
311.565; KRS § 311.606.
parties do not dispute that after approximately 15 weeks of
pregnancy and before a fetus is viable, the most common
second-trimester abortion procedure nationwide is a standard
D&E without first inducing fetal-demise. It is also
undisputed that the Act prohibits the standard D&E
abortion unless fetal-demise occurs before any fetal tissue
is removed from the woman.
seek a permanent injunction of H.B. 454. In determining
whether a permanent injunction should issue, four
considerations are relevant: (1) whether plaintiff showed
actual success on the merits; (2) whether the movant will
suffer irreparable injury unless the injunction issues; (3)
whether issuance of the injunction would cause substantial
harm to others; and (4) whether the public interest would be
served by issuance of the injunction. Jolivette v. Husted,
694 F.3d 760, 765 (6th Cir. 2012) (outlining the permanent
injunction factors). The plaintiff bears the burden of
persuasion as to each of these four showings. The court will
address each showing but first addresses a justiciability
question raised by the Commonwealth.
preliminary matter, the Commonwealth asserts that EMW lacks
standing to challenge the constitutionality of H.B. 454.
Ordinarily, a party cannot claim standing to vindicate
constitutional rights of some third party, in this case the
patients of EMW. Singleton v. Wulff, 428 U.S. 106, 114
(1976). However, this general rule has exceptions. Without
engaging in a lengthy analysis about the relationship between
EMW and its patients, it is enough to state that it is
well-established that it is “appropriate to allow a
physician to assert the rights of women patients as against
governmental interference with the abortion decision . . .
.” Id. at 118; see also Planned Parenthood
Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d
1390, 1396 (6th Cir. 1987) (holding that Planned Parenthood
and its Medical Director had standing to assert the
third-party rights of their patients because the
patients' rights are “inextricably bound up with
the activity the . . . clinic desires to pursue and seemingly
would not be asserted as effectively by the third parties who
actually possess those rights”) (internal quotation
marks omitted); Northland Family Planning Clinic, Inc. v.
Cox, 487 F.3d 323, 328 (6th Cir. 2007) (adjudicating
physicians' and clinics' claims on behalf of their
abortion patients); Women's Med. Prof. Corp. v.
Voinovich, 130 F.3d 187, 191-92 n.3 (6th Cir. 1997) (same).
Permanent Injunction - Success on the Merits
entitled to permanent injunctive relief, Plaintiffs must
first show they succeeded on the merits of their
constitutional challenge to the Act.
The Undue Burden
the nearly half century since Roe v. Wade recognized the
Fourteenth Amendment right to decide whether or not to
terminate a pregnancy, the Supreme Court has addressed
abortion regulations on several occasions. This court's
decision is controlled by the precepts articulated in those
opinions. Specifically, three basic principles arising from
Planned Parenthood of Southeastern Pa. v. Casey guide this
court. 505 U.S. 833 (1992). In that case, the Supreme Court
affirmed the essential holding of Roe. Id. at 846.
First is a recognition of the right of the woman to choose to
have an abortion before viability and to obtain it without
undue interference from the State. Before viability, the
State's interests are not strong enough to support a
prohibition of abortion or the imposition of a substantial
obstacle to the woman's effective right to elect the
procedure. Second is a confirmation of the State's power
to restrict abortions after fetal viability, if the law
contains exceptions for pregnancies which endanger the
woman's life or health. And third is the principle that
the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life
of the fetus that may become a child.
Id. In this case the Court turns its focus to the
first and third principles.
to this framework, before viability, a state may not forbid
elective abortion entirely. See Gonzales v. Carhart, 550 U.S.
124, 146 (2007) (quoting Casey, 505 U.S. at 879); see also
Stenberg v. Carhart, 530 U.S. 914, 921 (2000). Further, a
state “may not impose upon this right an undue burden,
which exists if a regulation's ‘purpose or effect
is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains
viability.'” Gonzales, 550 U.S. at 146 (quoting
Casey, 505 U.S. at 878). But a state is not left with no
power to regulate. Rather, “[r]egulations which do no
more than create a structural mechanism by which the State .
.. may express profound respect for the life of the unborn
are permitted, if they are not a substantial obstacle to the
woman's exercise of the right to choose.”
Id. (quoting Casey, 505 U.S. at 877) (internal
quotation marks omitted).
the Supreme Court elaborated on pre-viability regulations.
See Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292
(2016). The Court reiterated that “a statute which,
while furthering [a] valid state interest, has the effect of
placing a substantial obstacle in the path of a woman's
choice cannot be considered a permissible means of serving
its legitimate ends.” Id. at 2309 (quoting
Casey, 505 U.S. 877) (internal quotation marks omitted).
Specifically, Casey “requires that courts consider the
burdens a law imposes on abortion access together with the
benefits those laws confer.” Id. The
determination of whether a state regulation is a substantial
obstacle-and therefore an undue burden-must be assessed in
relation to the benefits that the regulation provides.
Id. Where a regulation's burdens exceed its
benefits, the regulation constitutes a substantial obstacle
to a woman's choice and cannot withstand constitutional
Second-Trimester Abortion Jurisprudence
rely heavily on two Supreme Court cases in which the Court
reviewed laws intended to ban Dilation and Extraction
(“D&X”) abortions, otherwise known as
partial-birth abortions. See Stenberg v. Carhart, 530 U.S.
914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007). Both
cases are instructive. Nebraska's statute in Stenberg was
found to be unconstitutional because the language of the law
was such that it prohibited not only D&X abortions, but
also could be read to ban the standard D&E abortion. See
Stenberg, 530 U.S. at 930 (“[I]t ‘imposes an
undue burden on a woman's ability' to choose a
D&E abortion, thereby unduly burdening the right to
choose abortion itself.”) (quoting Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992)). In
striking down the Nebraska law, the Court elaborated that
using the challenged law,
some present prosecutors and future Attorneys General may
choose to pursue physicians who use [the standard] D&E
procedures, the most commonly used method for performing
previability second trimester abortions. All those who
perform abortion procedures using that method must fear
prosecution, conviction, and imprisonment. The result ...