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.

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.

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.

After 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?

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.

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.

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!

Boom.

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.