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Appeals Court Panel Hears High-Stakes Kentucky Abortion Case

Ashley Lopez

Federal appeals judges should restore a Kentucky law at the heart of a licensing fight that threatened to close the state's last abortion clinic, an attorney for Gov. Matt Bevin argued Thursday.

Pointing to the high stakes involved, however, the clinic's attorney warned that the law's application by the anti-abortion governor's administration would be "tantamount to a ban on abortion" in Kentucky.

The law requires abortion clinics to have written agreements with a hospital and an ambulance service in case of emergencies. It was struck down last year by a federal judge who said it would effectively eliminate women's rights to abortions in the state.

Bevin, a Republican, said recently that he intends to apply the law's standards if the state wins its appeal, as he expects it will. He added: "If that results in no abortion clinics, fantastic." Bevin is trying to make abortion a paramount issue in his tight reelection battle against Democratic Attorney General Andy Beshear, who supports the 1973 U.S. Supreme Court decision that legalized abortion nationwide.

A member of Bevin's legal team and an attorney for the American Civil Liberties Union, who represents the clinic, argued the case before a three-member panel of the 6th U.S. Circuit Court of Appeals in Cincinnati.

ACLU attorney Brigitte Amiri said by phone afterward that "it's entirely possible" the case could end up being appealed to the U.S. Supreme Court, regardless of the outcome before the 6th Circuit.

Kentucky is one of many Republican-dominated states seeking to enact restrictions on abortion as conservatives take aim at the landmark Supreme Court decision that legalized abortion nationwide.

Energized by new conservatives on the Supreme Court, abortion opponents in multiple states hope to ignite new legal battles that could prompt the justices to revisit Roe v. Wade.

In her presentation Thursday, Amiri said the transfer agreements don't enhance patient safety, adding: "This is tantamount to a ban on abortion in the state of Kentucky."

Attorney Chad Meredith, who represents Bevin's administration, said the two-decade-old transfer agreement law is "not about shutting down abortion clinics," but about promoting health and safety.

"The commonwealth of Kentucky has every right to regulate abortion facilities to protect the health and safety of women," he said.

Judge Eric Clay responded by noting statistical data that he said indicated that abortions are safe procedures. He said it appears to be a "superfluous requirement."

In striking down the law last year, U.S. District Judge Greg Stivers concluded that the record includes no "credible proof that the challenged regulations have any tangible benefit to women's health."

Meredith later said if the state's last abortion clinic — EMW Women's Surgical Center in Louisville — were to close, the impact would be "essentially none" for women. Due to Kentucky "unique" geography, he said, no location is more than 150 miles from an abortion clinic in a bordering state.

Clay mentioned the expense and "inconvenience" of going to another state, asking how that wouldn't be an undue burden on women.

The three-judge panel included two appointees of President Donald Trump. Clay is an appointee of President Bill Clinton.

The other two judges on the panel seemed more interested in details of state regulations governing abortion clinics and the need for the emergency agreements.

Kentucky Republicans have pushed through a series of measures putting limits and conditions on abortion since assuming complete control of the state's legislature in 2017. Those laws have triggered several legal challenges.

This past spring, a federal judge struck down a Kentucky law that would halt a common second-trimester procedure to end pregnancies. The state has appealed.

Another Kentucky law bottled up in federal court would mostly ban abortions in the state once a fetal heartbeat is detected. A fetal heartbeat can be detected as early as six weeks into pregnancy, before many women know they're pregnant.