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FRANKFORT, Ky. | Friday, June 28, 2019

In a major pro-life victory for Gov. Matt Bevin and the people of the Commonwealth, the U.S. Court of Appeals for the Sixth Circuit today denied EMW Women's Surgical Center's petition for rehearing of the House Bill 2 ultrasound case.

In April, the Sixth Circuit upheld the constitutionality of HB 2 (2017), which requires an abortion provider to provide mothers with an ultrasound and a description of what it depicts, as well as the opportunity to hear the fetal heartbeat, before she chooses to terminate her pregnancy.

Earlier this month, the Louisville abortion clinic asked the Court to rehear the case en banc (before the entire bench) in a desperate attempt to undermine the Kentucky law, which passed with the support of more than 87 percent of state legislators.

Read more.

The Courier-Journal quoted the ACLU attorney from NY who called the law ‘medically unnecessary’ and not supported by medical groups including the American College of Obstetricians and Gynecologists and the American Medical Association. Read more.

In the linked video, Gov. Bevin discusses the victory!

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Planned Parenthood may soon be permitted to do abortions in its downtown Louisville facility on 7th Street.

Judge Greg Stivers wants to know ASAP if the state finds grounds to deny the license.

“You better move this one up to the front of the line," Stivers told Chad Meredith, a lawyer for Bevin.

"Yes, sir. I understand," Meredith said, according to a transcript of the telephonic conference the Courier Journal obtained.

"It can be done," Stivers said. "There's no question it can be done."

Added Stivers: "I can't understand why the secretary of that cabinet could not, could not get this license, this updated license, processed within 45 days."

Meredith responded that the cabinet "will absolutely move heaven and earth" to get the license application processed within that time.

That does not guarantee a favorable decision from the state.

Read more.

We believe that Deputy General Counsel Meredith is being polite, but Planned Parenthood's clinic in Louisville was denied a license because it did not have any Transfer Agreements, as required by Kentucky law. For background, see here. The TA Appeal before the Sixth Circuit will be heard on August 8. Before that time, it is unlikely that PP's license status will change. Please pray that the Appeal will be favorable for babies.

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For background on the Ultrasound Law continuing legal case, see this post and this page.

The EMW-ACLU Appeal to overturn the Bevin Administration’s successful Appeal to save Kentucky’s Ultrasound Law— is pending and may be read by anyone who desires to have a PACER account. PACER stands for Public Access to Court Electronic Records.

The opening pages of the EMW-ACLU Appeal list all the attorneys who are working on the case. Then, a Statement of Corporate Affiliations and Financial Interests asks two questions:

  1. Is said party (EMW) a subsidiary or affiliate of a publicly-owned corporation?
    Answer: No.
  2. Is there a publicly-owned corporation, not a party to the appeal that has a financial interest in the outcome of this litigation?
    Answer: No.

Shouldn’t there be a third question?

3. Is there a publicly-funded corporation that will benefit from this Appeal if it succeeds?

Answer: Yes, Planned Parenthood receives $500 million annually from the U.S. taxpayers and will certainly benefit if this Appeal succeeds.

And how about a fourth question?
4. Is there an innocent public group who will be harmed financially if this Appeal succeeds?
Answer: Yes, the taxpayers of Kentucky will be the losers, since they will pay the tab for the extensive legal work performed by numerous attorneys from the ACLU of New York, the ACLU of Kentucky, and a law firm from New York, not to mention all the attorneys working for EMW since the suit was first filed— following the passage of HB2 in 2017 by the Kentucky Legislature.

Of course, a new Appeal could send the case to SCOTUS, so we assume it could take some time to determine who pays. We do not know all the legal ins and outs.

And another question:
5. Who pays the ACLU?
Not EMW. The ACLU does not charge its clients for its services. So, EMW can thank George Soros and others who donate to the ACLU for helping them to pursue their Appeal.

But maybe the full panel of the Sixth Circuit will turn down the Appeal. Watch for more news.

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Sixth and final in the Amici series

When Planned Parenthood (PP) could not get a Transfer Agreement (TA) with any hospital in Louisville, it got one with U of Ky. in Lexington and Clark Memorial Hospital in Indiana. These were considered by the Bevin Administration (BA) too far from PP or in the case of Clark Co., not in Kentucky, which has the duty of oversight for the TA providers. Its jurisdiction does not extend to Indiana.

AG Beshear’s Argument 1 is that a state cannot rely on another state to protect a woman’s 14th amendment right. That was in response to the BA statement during the trial that a woman can get an abortion in Indiana, Tennessee, Ohio, etc., which is already true given that Kentucky currently only has one abortion clinic, the EMW in Louisville.

Thus, AG Beshear’s statements that Kentucky should let Indiana contract with PP in Louisville for a TA, but should not consider other state’s abortion clinics to be suitable for Kentucky women, seem contradictory.

Argument 2A says that “The BA has unduly burdened women seeking to exercise their constitutional rights” and 2B states that TAs “provide no benefit to clinic patients.” We disagree.

Regarding Argument 2A, as stated above, women currently do get abortions in nearby areas over state lines, which shows they are not unduly burdened in their pursuit of an abortion.

As for 2B, we lobbied for TAs way back in the 1990s, and have never reversed our position on this important service for women.

TAs may not be frequently needed, but they are important to have should the need arise. A current story that underscores this fact is here. Another is here.

We urge the judges of the Sixth Circuit Court to uphold Kentucky Law.

KRLA Forum

Fifth in the Amici series

In the Amicus, Gov. Bevin is accused by our AG of seeking to place in his budget “a provision excluding state funding for any ‘affiliate’ of abortion facilities, which caused [U of L Hospital’s parent company] KentuckyOne* to believe that its state funding would be jeopardized by a transfer agreement (TA) between U of L Hospital and any abortion clinic.” (In business law an affiliate is not part of the company with whom it affiliates. Thus, unless UofL Hospital owned Planned Parenthood or vice versa, there is no formal affiliation that could be stated. By law, an affiliate of PP would be a direct subsidiary.)

The media carried a false story that the Governor’s office had pressured UofL to cancel its TA with Planned Parenthood. During the trial, representatives of KentuckyOne stated categorically that no one in the Bevin administration had pressured them to cancel the TA.

Kentucky’s attorneys brought out that the state is not opposed whatsoever to TAs —which state law requires; it was simply a matter that the existing TAs were not legal documents. How would a contract with a hospital department be legal? (See post 2 of the series.)

An aside

Kentucky law also states that public funds may not go toward paying for abortion services. This statute was on the books as early as 1980. Thus, UofL Hospital does not perform abortions but, needless to say, it would be lawful for it to assist in saving the life of a woman who was damaged by an abortion.

In 2017 the “no public funds for abortion” statute was revised to permit re-ordering of who is eligible for funds, and this year President Trump further adjusted that policy so TAs may be the least of PP’s worries at this time.

The Trump Administration’s new final regulations for the federal Title X family planning program make significant changes to the program and will:

  • Block the availability of federal funds to family planning providers that also offer abortion services;
  • Prohibit sites that participate in Title X from referring pregnant clients to abortion providers;
  • Eliminate current requirements for Title X sites to provide non-directive pregnancy options counseling that includes information about prenatal care/delivery, adoption, and abortion;
  • Prioritize providers that offer comprehensive primary health care services over those that specialize in reproductive health services; and
  • Encourage participation by “non-traditional” organizations such as those that only offer one method of family planning, such as fertility awareness-based methods.

Read more.

The American Medical Association, AGs of many states, PP, and others have filed suit in federal court to block the new Title X regulations, stating that they violate the Constitution and federal law.

And on it goes.

*In June 2017 the UofL Hospital split from KentuckyOne and currently is managed by UofL’s University Medical Center.

KRLA Forum

Fourth in the Amici series

AG Beshear argues that he is a constitutional officer whose source of authority is the people who establish the government, and his primary obligation is to the people. Drawing from language in a previous court case, he states the “Attorney General owes his primary duties to the people – not the Governor or General Assembly…”

Although we can’t speak to every possible or actual case, we do know that the citizens of Kentucky voted for the statute in question and most recently for a heavily pro-life legislature, so if AG Beshear’s primary obligation is to us, then he must uphold pro-life laws and not seek to strike them.

ky_metro_blue_areas.pngAfter all, in Kentucky, the majority is based on population, not on geography. The population has spoken. The geographic areas with a majority of pro-choice voters are only in some metro areas. (The graphic shows the 2016 Presidential Election with only Jefferson and Fayette counties in blue.)

He also argues in the Amicus that he “has not only the power to bring suit when he believes the public's legal or constitutional interests are under threat, but … even the duty to do so.” (based on a legal case concerning a mining company in 1973)

Because the regulation at issue in this action threatens Kentucky women’s constitutional right to access to abortion, the Attorney General is permitted to file this amicus to protect the constitutional interests of the public.
Under the Kentucky Constitution, Kentucky statute, and common law, the Attorney General is sworn to uphold the Constitutions of the United States and Kentucky and to defend the laws of the Commonwealth, so long as those laws pass constitutional muster.

In addition to protecting the U.S. Constitution, AG Beshear desires to support Judge Stivers’ ruling that the Bevin Administration not only defended a needless regulation with no basis in medical science, he even did so on an emergency basis, and threatened hospitals that participated in transfer agreements.

What exactly did the Bevin administration do?

KRLA Forum

Third in the Amici series

AG Beshear’s Amicus brief was filed on behalf of Kentucky:

The Commonwealth of Kentucky by and through Andy Beshear, the Attorney General of Kentucky, submits this brief “without the consent of the parties or leave of court” pursuant to FRAP 29(a)(2), and in support of Appellees, EMW Women’s Surgical Center and Planned Parenthood of Indiana and Kentucky.

Please remember this when you vote in November. When you split your vote between Republican and Democrat, conflicts may erupt that will cost us taxpayers a LOT of money and impede progress for many key issues.

What is FRAP 29(a)(2)? Federal Rules of Appellate Procedure state that amicus briefs may only be filed by the U.S. or its officer or agency or a state without the consent of the parties or permission of the court.

How would “state” be defined in this instance? Would it not make sense that STATE means the entity that is being sued, and PARTIES would be the entities suing the STATE? So, here we have the STATE filing an amicus NOT for the STATE, but for the PARTIES. We call on the judge of the matter to throw out this Amicus.

(A similar but separate Amicus brief has been filed with the support of 20 other states, led by the AG of Nevada. At least it follows the protocol of FRAP 29(a)(2).)

As the KRLA blog posted on March 28, an Amicus brief was filed by 16 states IN SUPPORT of TAs. It TOO was based on FRAP 29(a)(2).

Is your head spinning? Please! Remember Kentucky’s motto: United we stand, divided we fall.

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Second in the Amici series

In Kentucky, TAs were signed into law in 1998. Read the law here. It basically states that abortion clinics must have a written agreement with an ambulance service and an acute-care hospital to accept and treat the clinic’s patients who have complications requiring emergency help. NOTE: This law is to save the lives of women AFTER they have exercised their constitutional right to get an abortion.

When Gov. Bevin took office a member of his staff discovered that the Transfer Agreements of Kentucky’s abortion clinics were not lawful. They had been contracted with a department of a hospital and not with the hospital itself. The clinics were given time to correct the oversight. Meanwhile the EMW clinic in Lexington was shuttered by the Bevin administration for its unhealthful environment, even though it did have a TA with U of K Hospital.

When the clinics did not correct their TAs, the state acted to prevent them from providing abortions services but it was ruled that EMW should remain open since it would be the state’s only abortion clinic. PP had only begun to do abortions in its clinic in Louisville.

In the spring of 2017, PP and EMW sued Kentucky to overturn the law requiring TAs. In early September the case went to court and was heard by Judge Greg Stivers who ruled the following September (2018) that the Plaintiffs, represented by the ACLU and others, were in the right. Kentucky was ordered to pay all attorneys’ fees and costs which were $512,384.50 and $22,210.69, respectively, which Judge Stivers found to be reasonable.

Gov. Bevin’s administration appealed the verdict to the Sixth Circuit Court of Appeals where it currently awaits judgment, as previously noted.

KRLA Forum

First in the Amici series

To defend the pro-life laws passed by the Kentucky General Assembly, Governor Bevin has called on his General Counsel Steve Pitt, Deputy General Counsel Chad Meredith, and his Secretary of the Cabinet for Health and Family Services, Adam Meier, and that cabinet’s attorneys. All these were commended during the 2019 General Assembly.

Though defending the laws of Kentucky is the job of AG Andy Beshear, he and his attorneys are instead working to overturn them!


On April 3rd, AG Andy filed an Amicus Brief in support of Planned Parenthood and the EMW clinic in their case against the state of Kentucky regarding Transfer Agreements (TAs). It has been endorsed by 20 states who are Beshear’s amici (friends).

The brief is co-signed by certain of his staff members: J. Michael Brown, Deputy Attorney General; La Tasha Buckner, Assistant Deputy Attorney General; S. Travis Mayo, Exec. Dir., Office of Civil and Environmental Law; and Sarah Ellen Eads Adkins and Marc G. Farris, Assistant Attorneys General.

The TAs case is currently in the Sixth Circuit Court of Appeals awaiting judgment. So, these employees of our state are supporting those who are suing our state.

The Brief states two arguments:

1. Defendants May Not Rely On Another State To Protect Women’s Fourteenth Amendment Right To An Abortion
(You may wonder: What is a woman’s 14th Amendment right to an abortion? After the Civil War a 14th amendment was added to the Constitution: “No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It was to assure civil rights for former slaves. Somehow Roe v. Wade framed it to mean that its Due Process Clause includes an implicit "right of privacy" that encompasses a right to abortion. (ref)

2. The Emergency Regulation And The Bevin Administration’s Conduct Had The Purpose And Effect Of Depriving Women Of Their Constitutional Right.
    A. The Bevin Administration unduly burdened women seeking to exercise their constitutional rights
    B. The Emergency Regulation provides no benefit to clinic patients.

We will take a look at AG Beshear’s Amicus Arguments and the topic of TAs, with this article being the first in a series of six blog posts.

KRLA Forum

An Amicus Curiea of 16 states was filed last month in support of Kentucky’s appeal to overturn the ruling on Transfer Agreements (TA). The TA ruling was made by Judge Greg Stivers in 2018 and then appealed to the 6th U.S. Circuit Court of Appeals by Governor Bevin’s administration.

The purpose of the TA is to assure that women who incur life-threatening injury in the course of having an abortion will be transported swiftly to a hospital. See the law here that was passed in 1998. See here for background on the legal suit.

Planned Parenthood recently filed a motion stating that Kentucky is in contempt of court “for what it calls the deliberate obstruction of its effort to get a state license for an a second clinic in Louisville.” (ref) PP does not believe Kentucky has grounds to refuse to license a second clinic in Louisville since the TA case was decided in October 2018. However, the case is still under appeal, and the Amicus Curiea will be good support for it.

As well, if the Born-Alive Abortion Survivors Protection Act should pass, whether on the national or state level, this would require TAs in all abortion clinics. The House in D.C. has not permitted the bill to be voted on, and we will find out some time today if Kentucky's SB 227 will become law. SB 227 is called the Born Alive Infant Protection Act. Today is the last day of the 2019 Ky. Legislative Session.

KRLA Forum

If you were not able to hear and watch Gov. Bevin and his running mate, Sen. Ralph Alvarado, speak out for LIFE at the KRLA Rally for Life on 3/7/19, you will in the video.

Many of us were so disappointed that we could not enter the Capitol to be part of the Rally. When we arrived an EXTREMMMMELY long line of teachers, both at the Capitol and Annex entrances, meant that by the time we would get inside, the Rally would be long over. None of us realized this until we got there.

We thank EVERYONE who came from so many different areas of Kentucky. What a disappointment! Those who did get in could barely hear the speeches due to the commotion of the staggering crowd of teachers. It’s wonderful that we have this video!

“Fight for the sanctity of human life and know that as your governor and as your legislature we will continue to fight with you every step of the way!” - Gov. Bevin at the 2019 Rally for Life Thank you, Governor Bevin!

KRLA Forum

HB 5, AN ACT relating to the human rights of unborn children to not be discriminated against, has been reported favorably and noted on the Legislative Calendar. A Corrections Impact Statement has been filed. See here. More on the Impact statement is here.

HB 148 has been engrossed and passed to the Senate Public Protection Committee, and SB 227 (see below in blog) has been introduced and passed to that committee. “Engrossed” means a bill is in the process of discussion and voting, and its wording is subject to amendment.

A Resolution, HR 135, has been introduced in the House to condemn the passage of the “Reproductive Health Act” by the New York State Assembly. Take a moment to read it. Its points are clear. States can legislate to curtail the carnage in Roe v. Wade, and we can speak out. Thank you, Kentucky Pro-Life Caucus and others in our legislature who are determined to stand for Life.

KRLA Forum

The opposition (Vote No!) spoke first. Kate Miller, advocacy director and primary lobbyist for ACLU Kentucky, was the starting quarterback with loads of statistics on how many poor women there are in Kentucky and the tremendous burden SB9 would be. She promised the unconstitutional bill would be held up in litigation for years like the other pro-life bills the Kentucky Legislature has passed.

Most people know that the pride and joy of poor people is their children. And what about adoption? It is true, though, that the ACLU knows how to jam the court system with lawsuits to convince Kentuckians that they are ignorant of the laws on abortion. (But a lot of pro-life progress has been made over the years!)

We also heard testimonies from a Planned Parenthood rep, an ObGyn doctor, a pastor of a Christian church who sees SB9 as injustice, a mother who lost a child from a fetal anomaly (did not require abortion), and an entrepreneur who could not have grown her business if SB9 had been in effect. She also said Kentucky already has way too many restrictions, forcing her to go out of state to have an abortion.

The testimonies of those who want to see SB9 pass (Vote Yes!) began with a physician with good insights on pre-born humans. We heard from a BesideUforLife center representative who is an ObGyn physician, an abortion survivor whose twin had been successfully aborted, and who had a daughter of her own. She wanted to know where was the justice and concern for her and for her daughter who would not exist except for the failed abortion. A pregnant mom was “miked” so we could hear a heartbeat. The Bill passed out of committee 10-2 and in the Senate 31-6. See KRLA Current News for more info.

Abby Johnson By far the most forceful testimony came from Abby Johnson, a national speaker who once was employed with PP and knows first-hand what their tactics and practices are. Abby boldly reminded the opposition that they can find better work and renew their minds to think normally about life. Seated next to Abby is Sen. Matt Caslen who sponsored SB9. Next to him is Claire Culwell of Austin, Texas, whose twin was aborted.

ASIDE: Abby was the featured speaker at the Louisville RTL 2013 Celebration of Life Banquet! These banquets are always so special. Please come this year! More info.

KRLA Forum

An article in the Feb. 2 C-J reports that PPINK (Planned Parenthood of Indiana and Kentucky) is joining forces with “its far larger and richer counterpart that serves the Pacific Northwest and Hawaii.” This is not a surprise.

About four years ago at a National RTL conference, Randall O’Bannon, NRLC Research Director, detailed the plans of PP to merge its operations little by little to become regional and showed pictures of large office buildings that would house its future operations.

According to C-J writer Andrew Wolfson,

The CEO of the combined alliance said it will have more money and legal muscle to fight “unrelenting attempts to undo constitutionally protected rights.”

The alliance will have a combined annual budget of as much as $90 million and serve 164,000 patients at 45 health centers in six states.

Chris Charbonneau, CEO of Planned Parenthood of the Great Northwest and the Hawaiian Islands (and now Planned Parenthood of Indiana and Kentucky), said the merger is part of a conscious effort of affiliates in blue states to help patients and organizations in states that are less hospitable to reproductive freedom.

Kentuckians, you dunnit. You elected a pro-life governor who took Louisville’s PP to court because it had no Transfer Agreements with local hospitals or ambulance service to protect the lives of aborted women in emergencies, as required by Kentucky law. The ACLU sued Ky on behalf of the EMW and PP clinics, and won, but our state is appealing the case. But PP cannot perform abortions, yet.

defunding abortion giantsAs well, your pro-life legislators passed a law preventing state monies from subsidizing abortion.

And other pro-life bills have been signed into law by our pro-life legislature that are currently in continuing litigation, including the Ultrasound and Dismemberment laws that would definitely hamper PP’s operation in Ky.

So, as Executive Director Margie Montgomery stated for the C-J article, “Planned Parenthood is running scared.”

That said, we must all be vigilant in this election year, and work hard to get the vote out for all pro-life candidates!

References: NRLC report | C-J article

Posts on this page

6/29/2019 5:07:04 PM
Sixth Circuit denies EMW/ACLU petition for rehearing of HB 2 Ultrasound case!
6/27/2019 12:44:32 PM
Planned Parenthood may soon be permitted to do abortions in Louisville
6/3/2019 8:26:21 PM
The ACLU seeks to appeal the verdict of the Sixth Circuit Court to uphold Kentucky’s Ultrasound Law
4/18/2019 3:45:43 PM
KRLA is strongly in favor of Transfer Agreements
4/17/2019 4:23:43 PM
Did the Bevin administration pressure UofL Hospital to cancel its Transfer Agreement with Planned Parenthood?
4/16/2019 4:51:43 PM
AG Beshear believes Kentuckians are largely pro-choice
4/15/2019 4:11:31 PM
AG Beshear Amicus brief not filed according to protocol
4/13/2019 4:08:19 PM
Attorney General Beshear lines up friends against State of Kentucky to support Planned Parenthood and EMW Clinic
4/12/2019 4:37:42 PM
Attorney General Beshear supports Planned Parenthood and EMW Clinic in their lawsuit against the state of Kentucky
3/28/2019 7:01:26 PM
An Amicus Curiea has been filed to support the Bevin Administration’s Appeal to overturn the ruling on Transfer Agreements
3/27/2019 6:06:59 PM
New abortion film spotlights practices of Planned Parenthood
3/8/2019 1:45:27 PM
The 2019 KRLA Rally for Life speeches by Gov. Matt Bevin and Sen. Ralph Alvarado
2/21/2019 1:53:38 PM
News about HB 5, HB 148, SB 227 and Resolution HR 135
2/16/2019 8:37:18 PM
Ky Legislature Public Protection Committee hears testimonies from Yea and Nay on Heartbeat Bill on February 14
2/2/2019 8:29:01 PM
Planned Parenthood joins forces with large region to take down Kentucky opposition to abortion

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