LEXINGTON, Ky. — Planned Parenthood Alliance Advocates and the American Civil Liberties Union of Kentucky have filed lawsuits asking a federal judge to block a restrictive abortion bill from taking effect in the state.
Calling the bill passed into law Wednesday night "tantamount to a ban on abortion," the pair of lawsuits filed in the U.S. District Court for the Western District of Kentucky on Thursday argue that House Bill 3, from Rep. Nancy Tate, a Brandenburg Republican, creates "unnecessary abortion requirements while simultaneously making those requirements impossible to comply with, given the immediate effective date of the law, forcing providers to stop offering abortion services," representatives of Planned Parenthood Alliances of Kentucky said in a statement.
Planned Parenthood's complaint contends that "it is impossible to comply with (the law's) vast provisions, resulting in an immediate ban on abortion statewide in the absence of this court's intervention."
Both groups also argue that personal patient information required under the new law amounts to "sweeping violations of patient privacy." Under the new law, a patient's age, ethnicity, city and county of residence, ZIP code, total number and dates of all previous abortions and live births, as well as a patient's reason for wanting an abortion and whether they were tested for sexually transmitted diseases, would all be recorded for public record.
The ACLU takes aim at the unconstitutionality of the law's 15-week ban in its separate lawsuit, filed on behalf of the EMW Women's Surgical Center in Louisville, one of two outpatient abortion clinics left in Kentucky. That portion of the bill is modeled after a Mississippi law before the U.S. Supreme Court. Mississippi has asked the high court to not only uphold its 15-week ban, but to also overturn Roe v. Wade. Under the 1973 landmark case, states cannot outlaw abortion before a fetus is viable, usually around 23 weeks.
The Republican-led General Assembly voted Wednesday, over shouts of "Bans off our body" from protesters, to override Gov. Andy Beshear's veto of House Bill 3, an anti-abortion omnibus bill that ends the mailing of abortion pills in Kentucky, raises the standards for minors wanting an abortion, and creates a broad abortion monitoring system that bill opponents say is impossible to comply with, and as a result, will effectively end access to the medical procedure in the state.
"We are arguing that because it is an effective ban on abortion, that it violates our patients right to obtain that constitutionally protected service," Planned Parenthood Federation of America attorney Carrie Flaxman said of the lawsuit.
House Bill 3 does the following:
—Ban abortion after 15 weeks of pregnancy.
—Make illegal the mailing of abortion pills.
—Tighten the current laws impacting parental consent for minors seeking abortions.
—Raise the bar for when a court can grant judicial bypass for a minor seeking an abortion.
—Enshrine that no "public agency funds" are used, directly or indirectly, to fund an abortion.
—Require the "dignified care for the terminated remains of pregnancy loss," which opponents say will put an undue cost burden on facilities providing the procedure.
—Require the state publish the names and addresses of all physicians who perform abortions to a public database, as well as details of all patients who get an abortion.
—Require the Cabinet for Health and Family Services to create an extensive certification and monitoring system to track anyone who dispenses, ships and manufactures abortion pills.
—Require the state to create an online complaint portal to receive anonymous complaints, each of which must be investigated.
Since loss of medical license, felony charges and fines up to $1 million can be levied on health care providers who violate aspects of the law, even though there are not yet mechanisms set up for providers to comply with its parameters, both groups are also arguing that it violates health care providers' due process rights under the 14th Amendment.
To dispense abortion pills in person under the law, for instance, providers have to log information into a new monitoring database under the Kentucky Abortion-Inducing Drug Certification Program, which does not yet exist. Continuing to dispense abortion pills outside that new system could result in a loss of medical license, a minimum $100,000 fine and a felony charge.
Under the new law, only "qualified physicians" can administer abortions in Kentucky. But, as Planned Parenthood argues, "there is no process established yet to confirm that a physician is qualified and registered for purposes of compliance with the law, and there are criminal penalties associated with noncompliance."
In total, the new law requires information recorded on at least eight separate documentation forms provided by the Cabinet whenever an abortion is administered in Kentucky, but "such forms do not presently exist," according to the lawsuit.
Flaxman explained, "The law is quite clear that government cannot require action with such consequences without giving people the means to comply."
Beshear made a similar point when he vetoed the bill last week. The cost for the Cabinet for Health and Family Services to set up an electronic certification and monitoring database mandated by the new law is estimated to cost $1 million initially, but lawmakers appropriated no additional funding to pay for it and allowed no additional time to set up the new system. Because the bill included an emergency clause, it took effect immediately.
"An agency is under no obligation to carry out an unfunded mandate," Beshear wrote in his veto message. "In the absence of an appropriation, these unfunded statutes may not be implemented."
In its accompanying filing for a temporary restraining order, the ACLU keys in on abortion as its protected under Roe and asks the court to intervene.
"Given the significant criminal and civil penalties at stake, plaintiffs cannot risk continuing to perform abortions absent an injunction from this court," it reads. "Plaintiffs are forced to turn patients away today, which is causing providers' and their patients irreparable harm. If the act is not quickly enjoined, it will force patients to remain pregnant against their will."
Until a temporary restraining order is granted, because the standards of the new law cannot be met, abortions will not be provided in Kentucky, said Rebecca Gibron, interim CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky said Wednesday.
Filing a lawsuit challenging the merits of the law is "just the next step in our fight to protect safe and legal access to abortion in Kentucky," Gibron said. "We will see you in court."
