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SCOTUS Ruling Opens Door For Challenges To State Abortion Laws

Planned Parenthood
The new Planned Parenthood facility in downtown Louisville.

Kentucky’s restrictions on women seeking abortions and providers could be challenged now that the U.S. Supreme Court struck down a Texas abortion law for putting an “undue burden” on a woman's right to the procedure.

State law requires women to have “informed consent” meetings with a doctor 24 hours before the procedure and also requires abortion clinics to have a “transfer agreement” with an ambulance service to take patients to a hospital in case of a medical emergency.

Elizabeth Nash, an associate with the abortion rights group Guttmacher Institute, said the ruling opens the door for people to challenge abortion laws if they limit access.

“When there is evidence that shows the harms to women in accessing services, either because the restriction makes it more difficult to access abortion or because the clinic shuts down, then those burdens can be weighed against any sort of potential benefit the law may have,” she said.

The state legislature recently passed a law that revamped Kentucky’s “informed consent” policy — women are now required to have an in-person or video conference meeting with a doctor 24 hours prior to the procedure. Previously abortion-seekers could have the meeting over the phone.

Nash said that Kentucky’s informed consent policy is unique because of the video conference requirement, but said the state would still have trouble proving that the policy improved women’s health in a measurable way.

“You balance the harms to all of these women versus an absence of data on the other side,” Nash said.

Kentucky has three abortion clinics — two in Louisville and one in Lexington — though only one clinic currently offers the procedure.

The two others are wrapped up in lawsuits brought on by Gov. Matt Bevin, who is suing the organizations for allegedly performing abortions without a license.

In its lawsuit against Planned Parenthood of Indiana and Kentucky, the Bevin administration said that the organization had an outdated transfer agreement in place.

Nicole Huberfeld, a law professor at the University of Kentucky, said that Monday's ruling won’t directly affect the lawsuit, but in the future, transfer agreements might be challenged as what she called "TRAP” laws --Targeted Regulation of Abortion Providers.

“I see this law as being a slightly looser standard, but it still fits under the umbrella of TRAP laws and so I think it’s safe to say that TRAP laws are on the chopping block now,” Huberfeld said.

Lawmakers proposed several abortion restrictions during this year’s General Assembly. One bill would have required abortion-seekers to view or hear a description of a sonogram image of the fetus. Another modeled after the now-defunct Texas law would have required abortion providers to meet the standards of an ambulatory surgical center.

Huberfeld said despite the ruling, lawmakers will continue to propose abortion laws — though they’ll be different in the wake of the Supreme Court ruling.

“We’ll just see newer, different, more creative forms of trying to restrict access to abortion,” Huberfeld said.

Ryland Barton is the Managing Editor for Collaboratives. Email Ryland at rbarton@lpm.org.