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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00189-GNS
EMW WOMEN’S SURGICAL CENTER,
P.S.C., on behalf of itself, its staff, and its
patients; and ERNEST MARSHALL, M.D.,
on behalf of himself and his patients

PLAINTIFFS

and
PLANNED PARENTHOOD
OF INDIANA AND KENTUCKY, INC.

INTERVENOR-PLAINTIFF

v.
VICKIE YATES BROWN GLISSON,
in her official capacity as Secretary of the
Cabinet for Health and Family Services; and
MATTHEW BEVIN, in his official capacity
as Governor of Kentucky

DEFENDANTS

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
I.
A.

OVERVIEW

Introduction

At issue in this case is the constitutionality of a Kentucky statute—KRS 216B.0435—and
its implementing administrative regulation—902 KAR 20:360 Section 10—which require
abortion facilities to maintain transfer agreements with local hospitals and transport agreements
with ambulance services to ensure provision of emergency care to patients experiencing
complications following abortion procedures. Under consideration is the determination whether
the benefits to the health of abortion patients from the required agreements are outweighed by
the burden on the availability of abortion services in Kentucky. See Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2310 (2016). The evidence presented here establishes clearly that

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the scant medical benefits from transfer and transport agreements are far outweighed by the
burden imposed on Kentucky women seeking abortions, such that the challenged laws
impermissibly “place[] a substantial obstacle in the path of women seeking a previability
abortion [and] constitute[] an undue burden on abortion access.” Id. at 2300.
B.

Legislative History

While this lawsuit largely involves events occurring in 2016 and 2017, the genesis of this
dispute occurred more than twenty years ago. In the 1990s, members of the Kentucky General
Assembly were appalled by the conditions in some abortion clinics in Kentucky—especially a
facility run by a notorious abortion provider named Dr. Ronachai Banchongmanie. (Defs.’ PostTrial Br. 3, DN 90). As characterized by Defendants:
[Dr. Banchongmanie] was able to engage in unsafe practices due to the complete
lack of regulations governing abortion clinics at the time. In a previous legislative
session, numerous women had testified about their horrifying experiences at Dr.
Banchongmanie’s clinic. In one disturbing example, a patient testified that she
was able to find her way to the patient recovery room by following the bloody
footprints from the surgery room.
(Defs.’ Post-Trial Br. 3 (citation omitted)).
To address this issue, the Kentucky General Assembly proposed legislation to regulate
abortion facilities during the 1998 legislative session.1 Although the original bill contemplated
regulating abortion facilities like ambulatory surgical centers (“ASCs”), the intent of the final
version of Senate Bill 217 was to hold abortion facilities to a lower standard than ASCs. (Defs.’
Trial Ex. DX25C, 31:25-33:04). The stated effort to provide oversight of abortion clinics was

1

During that same legislative session, the Kentucky General Assembly also enacted a law
banning partial birth abortions except when “necessary to save the life of the mother whose life
was endangered by a physical disorder, illness, or injury . . . .” Act of Apr. 14, 1998, ch. 578, §§
1-4, 1998 Ky. Acts 3481, 3481-85. This Court later struck down that ban as unconstitutional.
See Eubanks v. Stengel, 28 F. Supp. 2d 1024, 1033-37 (W.D. Ky. 1998), aff’d, 224 F.3d 576 (6th
Cir. 2000).
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tempered by the expectation that hospitals would readily be willing to enter into transfer
agreements for abortion patients. (Defs.’ Trial Br. Ex. 4, at 1-6, DN 90-4; Defs.’ Trial Ex.
DX25C, 31:28-38:28, 40:07-44:33). At the time, the House Judiciary Committee chairman
stated his belief that the requirement of transfer agreements would not be an impediment to
licensure because multiple hospitals would likely enter into transfer agreements with abortion
facilities. (Defs.’ Trial Ex. DX25C, 40:07-44:33). Contrary to that belief, however, during the
period pertinent to this litigation all Kentucky hospitals in the Louisville area have declined to
enter into such agreements.
The most salient aspect of Senate Bill 217, as codified in KRS 216B.0435, provides:
(1)

(2)

(3)

(4)

Each abortion facility shall enter into a written agreement with a licensed
acute-care hospital capable of treating patients with unforeseen
complications related to an abortion facility procedure by which
agreement the hospital agrees to accept and treat these patients.
If unforeseen complications arise prior to or during an abortion facility
procedure, the patient shall be transferred to the licensed acute-care
hospital with which the abortion facility has a written agreement as
provided under subsection (1) of this section or to the hospital selected by
the patient, if the patient so chooses[.]
Each abortion facility shall enter into a written agreement with a licensed
local ambulance service for the transport of any emergency patient within
the scope of subsection (1) of this section to the licensed acute-care
hospital[.]
The written agreements of an abortion facility with an acute-care hospital
and with a local ambulance service shall be filed by the abortion facility
with the cabinet[.]

Act of Apr. 14, 1998, ch. 582, § 5, 1998 Ky. Acts at 3508-09. The law also imposes penalties for
violations of the regulatory requirements imposed on abortion facilities. See Act of Apr. 14,
1998, ch. 582, § 8, 1998 Ky. Acts at 3510.
No party disputes that the provisions of KRS 216B.0435 were in place for almost 19
years before the filing of this litigation. In fact, by all accounts the necessity of the transfer and
transport agreements appears to have been merely an item on the checklist of licensure

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requirements, and the submitted agreements did not receive serious scrutiny. As a result, KRS
216B.0435 does not appear to have impeded the availability of legal abortions in Kentucky until
2016.
C.

Licensure Disputes
1.

EMW Plaintiffs

Plaintiff Ernest Marshall, M.D. (“Dr. Marshall”) is a board-certified obstetriciangynecologist who has practiced for over forty years and has delivered thousands of babies during
his career. (Trial Tr. vol. 1B, 18:5-17, 23:1-6, DN 112). He trains and teaches medical residents
at the University of Louisville School of Medicine (“ULSM”) and the University of Kentucky.
Dr. Marshall also maintains admitting privileges at Norton Hospital (“Norton”). (Trial Tr. vol.
1B, 19:12-20:8, 20:24-21:9, DN 112).

Plaintiff EMW Women’s Surgical Center, P.S.C.

(“EMW”) employs two additional physicians—Dr. Ashlee Bergin and Dr. Tanya Franklin—both
of whom are also professors at ULSM and maintain admitting privileges at University of
Louisville Hospital (“U of L Hospital”). (Trial Tr. vol. 1B, 21:10-22:25, DN 112).
EMW is owned by Dr. Marshall and has been in operation in Louisville since the early
1980s. (Trial Tr. vol. 1B, 18:1-2, 28:18, DN 112). The facility is located less than a mile away
from Norton, Jewish Hospital, and U of L Hospital. (Trial Tr. vol. 1B, 27:15-19, DN 112).
EMW performs an average of 3,000 abortions per year and is the only licensed abortion clinic in
Kentucky. (Trial Tr. vol. 1B, 23:18-20, DN 112).
Until 2017, EMW had no difficulties in maintaining its license to perform abortions. By
letter dated April 27, 2016, the Kentucky Cabinet for Health and Family Services (“CHFS”)
notified EMW that its license was renewed from June 1, 2016, through May 31, 2017. (Pls.’
Trial Ex. EMW-PX037). On March 13, 2017, however, CHFS advised EMW that its license had

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been renewed in error and that EMW’s transfer and transport agreements were not in compliance
with Kentucky law. (Pls.’ Trial Ex. EMW-PX027). In particular, the letter stated:
The tendered “Emergency Transfer Agreement”, dated February 14, 2014, is
deficient in that it (1) is not signed by an authorized representative of the
University of Louisville Hospital (The acute-care hospital required to be named in
the Agreement), (2) the University of Louisville Hospital withdrew from a similar
arrangement with another abortion facility in 2016, and may have done so with
the licensee, (3) the Chair, Department of Obstetrics, Gynecology and Women’s
Health is not authorized to enter into the Agreement and (4) the transfer
agreement names the Emergency Room as the transferee.
The tendered “Mercy Ambulance Service Inc.” document, dated February 1,
2016, (encl. 2) does not mandate with reasonable certainty the transport of the
licensee’s patients to the Transfer Agreement named entity (University of
Louisville Department of Obstetrics, Gynecology). In fact, its terms are no more
than an offer to provide a response time, upon being contacted, thus providing no
certainty of transport for an emergency patient to the purported transfer hospital.
(Pls.’ Trial Ex. EMW-PX027, at 1-2). EMW was given ten days to cure the deficiencies under
threat that it would immediately lose its license to perform abortions. (Pls.’ Trial Ex. EMWPX027, at 2). Despite its efforts, as outlined below, EMW was not able to obtain a transfer
agreement with any Louisville hospital and therefore filed this lawsuit seeking injunctive relief.
CHFS agreed not to take any further action on EMW’s licensure status pending resolution of this
matter, but CHFS maintains in this action that EMW is not in compliance with Kentucky law.
(Order 1-2, DN 16; Defs.’ Post-Trial Br. 7, DN 158).
2.

Planned Parenthood

Planned Parenthood is a non-profit healthcare provider which has been operating in
Louisville since 1933. (Trial Tr. vol. 2B, 71:5-10, 72:1-13, 77:5-6, DN 116). It currently
operates two Kentucky facilities, in Lexington and Louisville, offering a range of services
including cancer screening, pregnancy testing, reproductive health education, and provision of
contraception, as well as testing, treatment, and vaccinations for sexually transmitted diseases,

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but excluding abortion services. (Trial Tr. vol. 2B, 76:9-77:1, DN 116; Pls.’ Trial Exs. PPINKPX0243, PPINK-PX0244). At its Louisville facility, Planned Parenthood served 3,173 patients
in the 2016 fiscal year; 41% of its patients had annual incomes at or below 100% of the federal
poverty level, and 58% at or below 150% of the federal poverty level. (Trial Tr. vol. 2B, 75:1324, DN 116; Intervenor-Pl.’s Trial Ex. PPINK-PX0244).
In 2009, Planned Parenthood decided to begin the process of obtaining licensure to
provide abortion services at its Louisville location.2 (Trial Tr. vol. 2B, 77:7-17, DN 116).
Planned Parenthood began seeking a transfer agreement for its Louisville facility in mid-2013 by
contacting Norton, which ultimately declined to enter into an agreement. (Trial Tr. vol. 3A,
10:22-12:8, DN 126). Planned Parenthood was then able to secure a transfer agreement in
February 2014 with the Department of Obstetrics, Gynecology and Women’s Health (“OB/GYN
Department”) of U of L Hospital. (Trial Tr. vol. 3A, 13:2-14:15, DN 126; Intervenor-Pl.’s Trial
Ex. PPINK-PX0003). Planned Parenthood subsequently entered into a transport agreement with
Louisville Metro Emergency Medical Services (“LMEMS”) in October 2013. (Trial Tr. vol. 3A,
14:17-24, DN 126; Intervenor-Pl.’s Trial Ex. PPINK-PX0002).
Believing it had satisfied the requirement of having both agreements in place, Planned
Parenthood requested confirmation that its documentation was compliant with Kentucky law and
was told by CHFS that its agreements were acceptable. (Trial Tr. vol. 3A, 14:25-15:17, DN
126). Planned Parenthood also continued its attempts to secure a transfer agreement with
Norton, which led to the execution of a transfer agreement in May 2015. (Trial Tr. vol. 3A,
15:18-16:23, DN 126; Intervenor-Pl.’s Trial Ex. PPINK-PX0166, at 3-9).

2

Later that year,

As part of this process, Planned Parenthood made plans to relocate to a new facility in
downtown Louisville and raised $3.87 million to construct the new building, which was
completed in 2015. (Trial Tr. vol. 2B, 79:7-81:5, DN 116).
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however, talks with Norton to execute a new transfer agreement as part of Planned Parenthood’s
application for an abortion facility license broke down. (Trial Tr. vol. 3A, 16:5-19:25, DN 126).
During this time, Planned Parenthood likewise attempted to secure transfer agreements with
other facilities, including Baptist Hospital, Jewish Hospital, and the Louisville VA Medical
Center, but these efforts were also unsuccessful. (Trial Tr. vol. 3A, 20:1-22:1, DN 126; Pls.’
Trial Exs. PPINK-PX0157, PPINK-PX0183).
On November 19, 2015, Planned Parenthood filed an application with CHFS for an
abortion facility, including its February 2014 transfer agreement with U of L Hospital and the
transport agreement with LMEMS. (Trial Tr. vol. 3A, 31:10-19, DN 126; Intervenor-Pl.’s Trial
Ex. PPINK-PX0001).

Following its application, Planned Parenthood sought and received

confirmation from Kentucky’s then-Inspector General Maryellen Mynear (“Mynear”)3 that “a
facility must be performing services for which it seeks licensure so that the survey (i.e.,
inspection) process may fully evaluate compliance with the applicable regulations.” (Trial Tr.
vol. 2B, 74:10-19, 82:6-15, DN 116; Intervenor-Pl.’s Trial Ex. PPINK-PX0213).

Planned

Parenthood began providing abortion services in anticipation of the forthcoming CHFS
inspection and performed 23 abortions in December 2015 and January 2016. (Trial Tr. vol. 2B,
74:10-19, 82:6-15, DN 116). In early 2016, CHFS informed Planned Parenthood of concerns it
had about the terminology used in its transfer and transport agreements, and the parties
subsequently signed new agreements incorporating the state’s preferred language. (Trial Tr. vol.
3A, 22:2-23:8, 31:10-32:3, DN 126; Intervenor-Pl.’s Trial Exs. PPINK-PX0006, PPINKPX0007). CHFS later requested additional documentation from Planned Parenthood, which was
3

The Inspector General is the head of the Office of Inspector General (“OIG”) in CHFS, who is
appointed by the Secretary of CHFS with the approval of the Governor. See KRS
194A.030(1)(c). The OIG is responsible for licensing and regulatory functions as designated by
the Secretary, among other duties. See KRS 194A.030(1)(c)(1)-(4).
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provided. (Trial Tr. vol. 3A, 32:4-33:20, DN 126; Intervenor-Pl.’s Trial Exs. PPINK-PX0008,
PPINK-PX0013).
Shortly after a new transfer agreement was signed by U of L Hospital, representatives of
KentuckyOne Health (“KentuckyOne”)—a hospital management company controlled by
Catholic Health Initiatives which had taken over operation of U of L Hospital—advised Planned
Parenthood that U of L Hospital was terminating the agreement. The termination was apparently
due to concerns regarding the hospital’s state funding, public controversy, 4 as well as the
determination by KentuckyOne that the transfer agreement was unnecessary, from the hospital’s
perspective, to ensure proper medical treatment for any patients presenting for care at the U of L
Hospital emergency room. (Trial Tr. vol. 2B, 82:25-86:7, DN 116; Trial Tr. vol. 3A, 23:1026:19, 60:11-64:5, 71:12-78:18, DN 126; Intervenor-Pl.’s Trial Exs. PPINK-PX0151, PPINKPX0201, PPINK-PX0240).5
Ultimately, Planned Parenthood executed transfer agreements with University of
Kentucky Hospital (“UK Hospital”), located 70 miles away in Lexington, and Clark Memorial
Hospital, which is located across the Ohio River from Louisville four miles away in
Jeffersonville, Indiana, and transmitted those agreements to CHFS. (Trial Tr. vol. 3A, 27:1228:17, 33:21-34:3, DN 126; Intervenor-Pl.’s Trial Exs. PPINK-PX0010, PPINK-PX0011,
4

Planned Parenthood has argued that the agreement was terminated when KentuckyOne
“consult[ed] with the Archdiocese of Louisville and learn[ed] that its agreement with Planned
Parenthood might be deemed ‘material support’ for an abortion provider, or risk the possibility
of ‘scandal,’ in contravention of the Ethical and Religious Directives of the U.S. Conference of
Catholic Bishops,” even though the oversight of the OB/GYN Department was excluded from
KentuckyOne’s responsibilities. (Intervenor-Pl.’s Proposed Findings Fact & Conclusions Law 910, DN 157 (citing Intervenor-Pl.’s Trial Exs. PPINK-PX0201, PPINK-PX0202, PPINKPX0208; Reynolds Dep. 13:23-14:25, 22:7-23:5, 36:10-37:14, 40:1-41:18, Aug. 15, 2017, DN
135-1); Trial Tr. 3A, 56:16-57:10, DN 126)).
5
When KentuckyOne was replaced in the U of L Hospital system, Planned Parenthood again
attempted to secure a transfer agreement, to no avail. (Trial Tr. vol. 3A, 28:9-30:5, DN 126;
Intervenor-Pl.’s Trial Ex. PPINK-PX0242).
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PPINK-PX0012). CHFS rejected these agreements, citing the distance between the proposed
facility and UK Hospital, and the fact that Clark Memorial Hospital was not a Kentucky-licensed
hospital. (Trial Tr. vol. 3A, 34:4-17, DN 126; Intervenor-Pl.’s Trial Ex. PPINK-PX0014). Prior
to its rejection of Planned Parenthood’s agreements in 2016, CHFS had never found any transfer
or transport agreements deficient. (Trial Tr. vol. 2B, 10:22-12:22, 45:24-48:11 DN 116; Trial Tr.
vol. 3B, 60:9-19, DN 128). Planned Parenthood’s appeal of CHFS’s decision was unsuccessful.
(Trial Tr. vol. 3A, 34:18-23, DN 126).
D.

Executive Action

EMW Plaintiffs and Planned Parenthood invite the Court to delve in to the involvement
of Kentucky Governor Matthew Bevin (“Governor Bevin”), at least through his senior staff
including General Counsel Stephen Pitt (“Pitt”), in what would ordinarily be department-level
review of abortion clinic licensure issues. Although this contention seems generally supported
by the record, the actions or intent of Governor Bevin and his cadre have little bearing on the
outcome of this case. Suffice it to say that the perceived influence of the Governor’s Office has
essentially eliminated the availability of transfer agreements between EMW and Planned
Parenthood and any Louisville hospital.6 U of L Hospital terminated its transfer agreement with
Planned Parenthood after a meeting between its lobbyist and Pitt. (Trial Tr. vol. 2B, 115:23124:25, DN 116; Trial Tr. vol. 3A, 77:23-78:2, DN 126; Intervenor-Pl.’s Trial Exs. PPINKPX0203, PPINK-PX0240). Further, immediately following U of L Hospital’s cancellation of the
transfer agreement with Planned Parenthood, KentuckyOne’s CEO and its legislative affairs vice

6

For instance, Governor Bevin’s proposed budget for 2016 contained a provision excluding state
funding for any “affiliate” of abortion facilities, which caused KentuckyOne to believe that its
state funding would be jeopardized by a transfer agreement between U of L Hospital and any
abortion clinic. (Intervenor-Pl.’s Trial Ex. PPINK-PX00209, at 88; Trial Tr. vol. 2B, 84:11-20,
116:11-118:7, 120:12-121:5, DN 116).
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president drove to Frankfort to tell Pitt in person because they considered him a “stakeholder” in
the decision. (Trial Tr. vol. 2B, 126:2-11, DN 116; Trial Tr. vol. 3A, 62:5-63:10, 78:19-79:12,
DN 126). Norton likewise approached the Bevin administration to advise that it had not and
would not be entering into transfer agreements with any abortion clinics. (Bilby Dep. 31:7-17,
Sept. 1, 2017, DN 138-1).
Regardless of the reasons, it is clear that despite EMW and Planned Parenthood’s best
efforts, no Louisville hospital is currently willing to sign a transfer agreement with this type of
facility. As a result, it is impossible for EMW Plaintiffs or Planned Parenthood to comply with
the requirement of such agreements under KRS 216B.0435 and 902 KAR 20:360 Section 10.
E.

Regulations Enacted under KRS 216B.0435

In 1999, CHFS promulgated 902 KAR 20:360, implementing KRS 216B.0435 and
establishing licensure requirements applicable to abortion facilities. Prior to the initiation of this
litigation, the relevant portion of the regulation provided in its entirety: “(1) An abortion facility
shall enter into written agreements with a licensed acute-care hospital and a local ambulance
service for the transport and treatment of patients when hospitalization becomes necessary, as
required by KRS 216B.0435. (2) These written agreements shall be filed with the cabinet.” 902
KAR 20:360, § 10.

Thus, the pre-2017 version of the regulation placed no meaningful

requirements on the agreements between abortion facilities and hospitals and ambulance services
beyond the dictates of the statute. (Trial Tr. vol. 2A, 15:6-16:9, DN 115; Trial Tr. vol. 3A, 12:28, 20:1-24:20, 62:5-64:2, DN 126).
Following the initiation of this litigation, however, on June 15, 2017, Kentucky
promulgated an emergency administrative regulation amending the relevant portion of 902 KAR

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20:360.7 According to Inspector General Robert Silverthorn, Jr. (“Silverthorn”),8 he became
concerned about the lack of standards applicable to transfer and transport agreements articulated
in the prior version of the regulation, which he believed constituted a public health emergency.
(Trial Tr. vol. 2A, 26:24-30:11, 31:21-36:8, 75:16-76:8, DN 115). At trial, Silverthorn testified
that he could not accept a transfer agreement with a non-Kentucky acute care hospital because
the OIG has no authority to regulate acute care hospitals in other states. (Trial Tr. vol. 2A, 35:122, DN 115). While Silverthorn was concerned about the absence of standards articulated in the
existing regulation and initiated the process of promulgating the emergency regulation to address
his concerns, he conceded that no physicians were consulted regarding the substance of the
emergency regulation. (Trial Tr. vol. 2A, 29:25-30:11, DN 115).
As part of the justification for the emergency administrative regulation, CHFS stated:
This emergency action is necessary to establish standards for effective transfer
and transport agreements that serve to minimize risks associated with an emergent
situation through the use of carefully designed protocols focused on maximizing
the efficiency of the patient’s transfer. This action must be implemented on an
emergency basis in accordance with KRS 13A.190(1)(a) to avoid an imminent
threat to public health and safety.
Statement of Emergency, 902 KAR 20:360E. In particular, the emergency regulation amended
Section 10, inter alia, to provide: (i) the transfer agreement must be with a Kentucky-licensed
acute care hospital within the same county as the abortion facility or within a twenty-minute
drive; (ii) the transport agreement must be with a Kentucky-licensed ambulance service in the
same county as the abortion facility, or within five miles or ten minutes from the abortion
facility; (iii) the ambulance service must acknowledge the existence of and familiarity with the

7

While EMW Plaintiffs and Planned Parenthood question whether an emergency existed to
trigger rulemaking pursuant to KRS 13A.190, they have not asserted a claim challenging the
validity of the emergency administrative regulation on that basis.
8
After the trial of this matter, Silverthorn resigned from his position on September 28, 2017.
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transfer agreement and agree to transfer the patient to the transferee hospital absent a different
request from the patient; and (iv) existing abortion facilities seeking license renewals and new
applicants for abortion facilities were allowed to submit written requests for extensions of time
of up to ninety days to comply with the requirement of obtaining transfer and transport
agreements.9 See 902 KAR 20:360E, § 10(1), (3), (4), (5). As noted at trial, the ninety-day
provisional licensure or extensions of time for abortion facilities without compliant transfer
and/or transport agreements was intended to allow them to continue to operate while seeking
such agreements. (Trial Tr. vol. 2A, 30:14-31:14, DN 115; Pls.’ Trial Ex. EMW-PX0175;
Intervenor-Pl.’s Trial Ex. PPINK-PX0029).
F.

Procedural History

On March 29, 2017, EMW and Dr. Marshall (collectively “EMW Plaintiffs”) filed this
action against Defendant Vickie Yates Brown Glisson (“Glisson”) in her official capacity as
Secretary of the CHFS, alleging violations of the First and Fourteenth Amendments of the U.S.
Constitution. (Pls.’ Verified Compl. ¶¶ 56-63, DN 1). EMW Plaintiffs also requested injunctive
relief from enforcement of the unconstitutional regulation of abortion facilities. (Pls.’ Verified
Compl. 15). On March 31, 2017, this Court entered a temporary restraining order pursuant to
Fed. R. Civ. P. 65 enjoining the enforcement of KRS 216B.0435 and 902 KAR 20:360 Section
10. (TRO 3-4, DN 6). By agreement of the parties, the Court later entered a preliminary
injunction pending the entry of a final judgment in this action. (Order 1, DN 16).
On June 23, 2017, the Court permitted Planned Parenthood to intervene in this action.
(Mem. Op. & Order 13, DN 45; Intervenor-Pl.’s Compl., DN 46). In its Complaint, Planned

9

Through the rulemaking process, the emergency regulation essentially became the current
version of 902 KAR 3:360 with minor revisions effective October 11, 2017, and is still currently
in effect.
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Parenthood asserted claims for, inter alia, violations of the Fourteenth Amendment of the U.S.
Constitution. (Intervenor-Pl.’s Compl. ¶¶ 55-77). Planned Parenthood also asserted claims
against Governor Bevin in his official capacity. (Intervenor-Pl.’s Compl. ¶ 13).
The parties subsequently engaged in pretrial discovery. In addition to the production of
documents, the parties deposed various persons and have filed numerous deposition transcripts
with the Court. Following a three-day bench trial, the parties submitted post-trial briefs and
proposed findings of fact and conclusions of law. (Pls.’ Proposed Findings Fact & Conclusions
Law, DN 154; Defs.’ Proposed Findings Fact & Conclusions Law, DN 156; Intervenor-Pl.’s
Proposed Findings Fact & Conclusions Law, DN 157; Defs.’ Post-Trial Br., DN 158).
G.

Contentions of the Parties
1.

EMW Plaintiffs

EMW Plaintiffs assert that they have standing to assert claims on behalf of themselves,
their staffs, and their patients. (Pls.’ Verified Compl. ¶ 1). They request that the Court declare
the challenged regulations unconstitutional both as-applied and facially. (Pls.’ Verified Compl. ¶
15). EMW Plaintiffs argue that the Court should declare the challenged laws unconstitutional as
violating the Fourteenth Amendment of the U.S. Constitution because the laws violate their
substantive due process rights. (Pls.’ Verified Compl. ¶¶ 56-57). In particular, EMW Plaintiffs
maintain that the challenged laws impose an undue burden on women’s rights to an abortion
because the effect of these laws is to eliminate legal abortions in Kentucky. (Pls.’ Verified
Compl. ¶ 54).
EMW Plaintiffs also contend that these challenged laws constitute an unlawful delegation
of licensing authority in violation of the Fourteenth Amendment. (Pls.’ Verified Compl. ¶¶ 6061). Allowing acute care facilities to determine whether to enter into transfer agreements, EMW

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contends, effectively empowers those facilities to determine whether abortion facilities are able
to be licensed. (Pls.’ Verified Compl. ¶ 61).
2.

Planned Parenthood

Planned Parenthood argues that it has standing to represent its patients’ Fourteenth
Amendment interests. (Intervenor-Pl.’s Proposed Findings Fact & Conclusions Law 52-53).
Planned Parenthood’s first contention is that the challenged statute and implementing regulation
violate the Fourteenth Amendment by having the purpose and effect of placing a substantial
obstacle in the path of a woman seeking an abortion. (Intervenor-Pl.’s Proposed Findings Fact &
Conclusions Law 53-76). It avers that Defendants have not met their burden of proving that the
challenged legislation furthers a legitimate state interest in protecting women’s health and that
any supposed benefit is vastly outweighed by the burdens placed on women seeking an abortion.
(Intervenor-Pl.’s Proposed Findings Fact & Conclusions Law 54-56, 61-70).
Planned Parenthood next contends that the transfer and transport agreement requirements
create an unlawful delegation of abortion facility licensure decisions to private hospitals and
ambulance services, in violation of its due process rights. (Intervenor-Pl.’s Proposed Findings
Fact & Conclusions Law 76-79).

It further claims that the challenged legislation and

Defendants’ enforcement thereof violate the Equal Protection clause, whether examined under
strict scrutiny or rational basis review. (Intervenor-Pl.’s Proposed Findings Fact & Conclusions
Law 79-84).
3.

Defendants

Defendants respond that KRS 216B.0435 and 902 KAR 20:360 Section 10 do not place a
substantial burden on a woman’s right to obtain an abortion in Kentucky. (Defs.’ Post-Trial Br.
18-20). They maintain that the challenged laws serve a valid purpose by ensuring that women

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experiencing complications from abortion procedures are properly transferred to acute care
hospitals and receive proper care when they arrive in the emergency room. (Defs.’ Post-Trial Br.
21-28). Defendants also posit that the mandated transport agreements are necessary to facilitate
the transportation of women by ambulance to an acute care hospital in the event of an
emergency. (Defs.’ Post-Trial Br. 21-28). Thus, Defendants reason that the challenged laws
serve a valid state purpose and have a rational basis. (Defs.’ Post-Trial Br. 17-18).
II.

FACTUAL ISSUES

As framed by the parties, the bench trial addressed the following primary issues of fact:
(i)

whether KRS 216B.0435 and 902 KAR 20:360 Section 10 serve a medical

purpose and are medically necessary and reasonable;
(ii)

how the enforcement of KRS 216B.0435 and 902 KAR 20:360 Section 10 will

affect abortion facilities performing abortions in Kentucky; and
(iii)

how the enforcement of KRS 216B.0435 and 902 KAR 20:360 Section 10 will

affect the ability of women in Kentucky to obtain an abortion.
III.

FINDINGS OF FACT

“In an action tried on the facts without a jury . . . , the court must find the facts
specifically and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). The Court’s
findings of fact based on the evidence submitted in the record and the trial testimony are set forth
below.10 See Gold v. United States, 552 F. Supp. 66, 67 (D. Colo. 1982) (citations omitted). The
Court has considered the evidence submitted by the parties, has observed the demeanor and
credibility of the witnesses who testified in court, and has carefully weighed the evidence in
determining the facts pertinent to the case and drawing conclusions therefrom.
10

In addition, the stipulated facts tendered by Planned Parenthood, Glisson, and Governor Bevin
(DN 105) are generally incorporated by reference but also cited throughout.
15

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A.

Abortion Generally & in Kentucky

According to a recent study discussed in the American Journal of Public Health, the
number of abortions performed in the United States is on the decline. See Rachel K. Jones &
Jenna Jerman, Population Group Abortion Rates and Lifetime Incidences of Abortion: United
States, 2008-2014, 107 Am. J. Pub. Health 1904, 1904 (2017). “In 2014, 926[,]190 abortions
were performed in the United States; the abortion rate was 14.6 abortions per 1000 women aged
15 to 44 years, meaning that in that year 1.5% of women of reproductive age had an abortion.”
Id. Of the women seeking abortions that year, “49% . . . had family incomes below 100% of the
federal poverty level, a significant increase from 42% in 2008. . . . Low-income and younger
women have traditionally been at increased risk for unintended pregnancy and, in turn,
abortion.”11 Id.; see also June Med. Servs. LLC v. Kliebert, 158 F. Supp. 3d 473, 487 (MD. La.
2016) (“Nationally, approximately 42% of women who have abortions fall below the federal
poverty level, and another 27% fall below 200% of that level.” (citations omitted)); Planned
Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 981-82 (W.D. Wis. 2015) (noting
the decline in the number of abortions).

11

A more recent study published by the National Academies of Sciences, Engineering, and
Medicine similarly noted:
Most women who have abortions are under age 30 (72 percent), are unmarried (86
percent), and are poor or low-income (75 percent). Women who have abortions
are also more likely to be women of color (61.0 percent); half of all women who
have abortions are black (24.8 percent) or Hispanic (24.5 percent). This
distribution is similar to the racial and ethnic distribution of women with
household incomes below 200 percent of the federal poverty level (FPL). Poor
women and women of color are also more likely than others to experience an
unintended pregnancy.
Nat’l Acads. of Scis., Eng’g & Med., The Safety and Quality of Abortion Care in the United
States S-6 (2018) [hereinafter NAS Study]).
16

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During the period of time relevant to this lawsuit, a woman in Kentucky could legally
obtain an abortion prior to twenty weeks post-fertilization. See KRS 311.782(2)(a). After
twenty weeks, a woman could only obtain an abortion if her life was endangered or if her
physical health was severely compromised.

See KRS 311.782(2)(b).

Because Kentucky

permitted later-term abortions compared to other states and EMW is able to handle complicated
situations arising from later-term abortions, residents of the neighboring states of Indiana, Ohio,
Tennessee, and West Virginia have traveled to EMW to have an abortion. (Trial Tr. vol. 1B,
26:17-27:1, DN 112).
Following the U.S. Supreme Court’s decision in Roe v. Wade legalizing abortion in 1973,
there were seventeen clinics and hospitals performing abortions in Kentucky in the 1970s. See
Roe v. Wade, 410 U.S. 113, 154 (1973); Chris Kenning, “Kentucky’s Last Abortion Clinic in
Long-Running War,” Courier J. (Louisville, Ky.) (Feb. 23, 2017), https://www.courierjournal.com/story/news/local/2017/02/23/abortion-restrictions-raise-stakes-long-runningsidewalk-showdown/97707454/ (last visited Sept. 26, 2018). Today, there is only one licensed
operating abortion facility in Kentucky—EMW—and another facility operated by Planned
Parenthood has been unsuccessful in its application for licensure to perform abortions. (Trial Tr.
vol. 2A, 55:21-24, DN 115).
B.

Purpose and Medical Reasonableness of KRS 216B.0435 and 902 KAR
20:360 Section 10

Through various filings and proof presented at trial, the parties have introduced evidence
regarding the purpose and medical reasonableness of the challenged Kentucky regulations.
Much of this evidence was submitted via expert and factual testimony. The Court will therefore
consider each expert’s credibility and make factual findings concerning the risks associated with
abortions and whether transfer and transport agreements mitigate those risks.

17

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1.

Experts’ Qualifications
a.

EMW Plaintiffs’ and Planned Parenthood’s Expert

The Court was impressed with the credibility of the retained expert, Dr. Paula J.A.
Hillard (“Dr. Hillard”). Dr. Hillard is a professor of Obstetrics and Gynecology at Stanford
University Medical Center. (Trial Tr. vol. 1A, 52:23-53:1, DN 108; Pls.’ Notice Expert Test. Ex.
A, at 2, DN 32-1). She has served as the Associate Chair of Medical Student Education in the
Department of Obstetrics and Gynecology at Stanford since 2011, and from 2007 to 2011 she
served as Chief of the Division of Gynecologic Specialties for that department. (Pls.’ Notice
Expert Test. Ex. A, at 2). Previously, Dr. Hillard practiced medicine for twenty-three years as a
member of the faculty of the University of Cincinnati College of Medicine. (Trial Tr. vol. 1A,
53:17-21, DN 108; Pls.’ Notice Expert Test. Ex. A, at 2). She also served three years on the
faculty at the University of Virginia School of Medicine. (Trial Tr. vol. 1A, 54:20-21, DN 108;
Pls.’ Notice Expert Test. Ex. A, at 2).
Dr. Hillard earned her medical degree from Stanford University and completed her
residency training at the University of North Carolina. (Trial Tr. vol. 1A, 53:24-54:2, DN 108).
Dr. Hillard became board certified in obstetrics and gynecology in 1983 and is a fellow of the
American College of Obstetricians and Gynecologists, and the American Gynecological and
Obstetrical Society. (Trial Tr. vol. 1A, 53:9-16, 55:3-7, DN 108; Pls.’ Notice Expert Test. Ex. A,
at 2).
Beyond that, Dr. Hillard serves as the editor-in-chief of the Journal of Pediatric and
Adolescent Gynecology and has served as an editorial board member and reviewer/consultant for
numerous journals. (Pls.’ Notice Expert Test. Ex. A, at 2). She has authored or co-authored
more than 140 articles on obstetrics and gynecology in peer-reviewed journals, and more than 40

18

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book chapters. (Trial Tr. vol. 1A, 54:3-12, DN 108; Pls.’ Notice Expert Test. Ex. A, at 2). She
has served as the sole editor for two books. (Trial Tr. vol. 1A, 54:12, DN 108; Pls.’ Notice
Expert Test. Ex. A, at 2).
Dr. Hillard also has clinical experience relevant to the issues in this case. She has
performed abortions, teaches medical students how to perform abortions, and has given
presentations on abortion to other physicians. (Trial Tr. vol. 1A, 54:23-55:2, DN 108; Pls.’
Notice Expert Test. Ex. A, at 3). The Court accepts Dr. Hillard as an expert in obstetrics and
abortion care.
In addition to Dr. Hillard, EMW Plaintiffs and Planned Parenthood presented several
witnesses who provided factual and expert opinion testimony, including Dr. Christine Cook
(“Dr. Cook”).12 (Pls.’ Notice Expert Test. Ex. B, at 2-4, DN 32-2). Dr. Cook supervises
residents at the University of Louisville as they learn about and practice obstetrics and
gynecology. (Trial Tr. vol. 1A, 100:20-23, DN 108). Prior to that, she worked in various roles
at the University of Louisville. (Trial Tr. vol. 1A, 100:20-13, DN 108). From 2004 to 2011, Dr.
Cook served as the chair of the OB/GYN Department. (Trial Tr. vol. 1A, 101:1-3, DN 108).
She is board certified in obstetrics and gynecology and has published more than thirty articles
related to that field. (Trial Tr. vol. 1A, 101:4-12, DN 108). Finally, Dr. Cook is trained to
provide abortions, has performed abortions, and has cared for and treated women who have
attempted to terminate their pregnancies on their own or without the assistance of an abortion
facility. (Trial Tr. vol. 1A, 102:2-5, 115:14-16, DN 108). To the extent Dr. Cook provided
expert opinions, the Court accepts her as an expert in obstetrics and abortion care.

12

Dr. Marshall also provided factual and expert testimony on behalf of EMW Plaintiffs. The
Court, however, has already discussed his pertinent credentials. Based on those credentials, the
Court accepts Dr. Marshall as an expert in obstetrics and abortion care.
19

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b.

Defendants’ Expert

At trial, Defendants proffered the expert testimony of Dr. Richard Hamilton, who
currently is a Professor and Chair of Emergency Medicine at Drexel University College of
Medicine. (Trial Tr. vol. 3A, 88:25-89:1, DN 126; Defs.’ Notice Filing Rebuttal Expert Reports
Ex. B, at 12, DN 44-2). Dr. Hamilton earned his medical degree from Hahnemann University
(now Drexel University College of Medicine) and his undergraduate degree from the University
of Pennsylvania, which are both located in Philadelphia, Pennsylvania. (Trial Tr. vol. 3A, 88:56, DN 126; Defs.’ Notice Filing Rebuttal Expert Reports Ex. B, at 14). Since 1997, Dr.
Hamilton has been engaged in an academic practice of emergency medicine and medical
toxicology, and previously completed his residency in emergency medicine and a fellowship in
medical toxicology. (Trial Tr. vol. 3A, 88:11-14, DN 126; Defs.’ Notice Filing Rebuttal Expert
Reports Ex. B, at 2). He is board certified in both emergency medicine and medical toxicology.
(Trial Tr. vol. 3A, 89:2-4, DN 126; Defs.’ Notice Filing Rebuttal Expert Reports Ex. B, at 14).
Dr. Hamilton retired from United States Navy at the rank of Captain and served as a naval flight
surgeon. (Trial Tr. vol. 3A, 88:7-10, DN 126; Defs.’ Notice Filing Rebuttal Expert Reports Ex.
B, at 2). Prior to that, he served as Chief of Medical Operations and Chief of Service at the
Naval Air Development Center. (Defs.’ Notice Filing Rebuttal Expert Reports Ex. B, at 2-3).
Dr. Hamilton was retained as an expert witness in this matter to provide opinions as an
emergency medicine physician. (Defs.’ Notice Filing Rebuttal Expert Reports Ex. B, at 3).
Dr. Hamilton testified that he had not reviewed KRS 216B.0435 or 902 KAR 20:360
Section 10. (Trial Tr. vol. 3A, 110:21-111:2, DN 126). He has never performed an abortion and
was not aware of any case in which a woman obtaining an abortion in Kentucky received
improper care.

(Trial Tr. vol. 3A, 111:9-14, 111:21-25, 112:1-3, DN 126).

20

He also

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acknowledged that he was not proffering any opinions about transport agreements. (Trial Tr.
vol. 3A, 112:4-6, DN 126). Dr. Hamilton further conceded he did not review the transfer
agreements that either EMW or Planned Parenthood had for its facility, so he could not offer any
opinions as to the sufficiency of those agreements. (Trial Tr. vol. 3A, 113:16-114:2, DN 126).
He was unfamiliar with the protocols at abortion facilities to ensure patient safety. (Trial Tr. vol.
3A, 120:19-121:2, DN 126). In more general terms, Dr. Hamilton had not reviewed and was
unaware of any study showing an impact on patient care resulting from a transfer agreement.
(Trial Tr. vol. 3A, 118:23-119:3, DN 126; Trial Tr. vol. 3B, 12:15-18, DN 128).
While Dr. Hamilton has practiced emergency medicine, his opinions have no bearing on
the frequency of complications arising in an abortion-facility setting. (See, e.g., Trial Tr. vol.
3A, 111:5-25, DN 126). In fact, in the past five years, he has only treated one patient suffering
from abortion-related complications in an emergency setting. (Trial Tr. vol. 3A, 111:22-25, DN
126). Further, though he was able to offer some insight into the mechanics of patient transfer,
Dr. Hamilton lacked sufficient knowledge to offer opinions regarding the practical necessity and
benefits of transfer agreements. At best, Dr. Hamilton indicated that transfer agreements would
theoretically help achieve optimal patient care in the abstract, but failed to provide meaningful
detail as to how the utilization of such agreements improved care in any tangible way. (See, e.g.,
Trial Tr. vol. 3A, 90:21-22, DN 126). That said, the Court will accept Dr. Hamilton as an expert
in the field of emergency medicine, but not as an expert in the field of obstetrics or abortion care.
2.

Impacts of Transfer and Transport Agreements

The Court will now address the nature of the risks associated with abortions and whether
transfer or transport agreements mitigate those risks.

21

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a.

Abortion Risks

As an initial matter, the Court finds that abortion is a relatively safe medical procedure.
The risk of death from abortion procedures is less than that posed by childbirth. (Trial Tr. vol.
1A, 75:16-19, DN 108). As cited by Plaintiffs, a study analyzing 54,911 abortions performed in
California during 2009 and 2010 found that only about “1 [out] of [every] 5,491 (0.03 percent,
n=15) [abortion procedures] involved ambulance transfers to emergency departments on the day
of the abortion.”13 Ushma D. Upadhyay, et. al, Incidence of Emergency Department Visits and
Complications After Abortion 2015 [hereinafter Upadhyay Study] (admitted as Plaintiffs’ Trial
Exhibit EMW-PX119).
Though abortions are generally safe, each of the four types abortion procedures pose
some risk of complication.

Because the facilities at issue in this case only performed

“medication” (also referred to as “medical”) and “aspiration” (also referred to as “surgical”)
abortions, the Court will limit its factual findings to the risks associated with those procedures.
(Stipulations Parties ¶ 17, DN 43).
i.

Medication Abortion

One common form of abortion is medication abortion, which involves the use of
medications such as mifepristone and misoprostol that break down the implanted embryo and
essentially cause pregnant women to experience a spontaneous abortion or miscarriage. (Trial
Tr. vol. 1A, 57:5-9, DN 108). Though medication abortions are safe, the procedure does present

13

Both Dr. Hillard’s trial testimony and the Upadhyay Study are consistent with the NAS Study,
which noted that the risk of mortality relating to abortions in the United States is extremely
low—particularly when compared to other procedures. According to the NAS Study, the
mortality rate based on the number of deaths per 100,000 procedures was 0.7 for legal abortions
(1988-2010), 8.8 for childbirth (1988-2005), 2.9 for colonoscopies (2001-2015), 0.0 to 1.7 for
dental procedures (1999-2005), and 0.8 to 1.7 for plastic surgery (2000-2012). See NAS Study
2-24.
22

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some risk of complications, including excessive bleeding or infection, that typically arise after
the patient has returned home.

(Trial Tr. vol. 1A, 57:24-58:19, DN 108).

Dr. Hillard’s

testimony is consistent with the Upadhyay Study, which noted the complication rates for
medication abortions as follows:

incomplete abortions (0.87%); failed abortions (0.13%);

hemorrhaging (0.14%); and infection (0.23%).14 See Upadhyay Study 180. Further, as Dr.
Hillard testified, these complications generally manifest in a nonclinical setting—i.e., after the
patient has left the facility where the medication was administered. (Trial Tr. vol. 1A, 57:2458:19, DN 108).
Based on the evidence presented at trial and the Upadhyay Study, the Court finds that
medication abortions involve minimal health risks to women. Of equal significance, the Court
finds that complications arising from medication abortions typically present after a woman has
returned home from the abortion facility.

14

Similarly, the NAS Study notes:
It is common for medical procedures to result in side effects in addition to the
intended outcome. Medication abortions involve cramping, pain, and bleeding,
similar to the symptoms of a miscarriage. Vaginal bleeding is expected during
and after an abortion and occurs in almost all patients during a medication
abortion.

NAS Study 2-8 (internal citation omitted) (citation omitted). The NAS Study further explains
that the FDA has approved mifepristone for use in medical abortions for nearly twenty years,
during which time “an extensive body of research has led to improvements in the drug’s
protocol”—including minimization of the drug’s side effects. NAS Study 2-6. As a result,
“[c]omplications after medical abortion, such as hemorrhage, hospitalization, persistent pain,
infection, or prolonged heavy bleeding, are rare—occurring in no more than a fraction of a
percent of patients.” NAS Study 2-9 (citations omitted).
23

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ii.

Aspiration Abortion Risks

The most widely used abortion method in the United States is called an aspiration or
surgical abortion, which can occur during the first or second trimester of pregnancy. (Trial Tr.
vol. 1A, 57:10-20, DN 108). As described at trial:
[An aspiration abortion] involves an examination as a woman might have for
obtaining a pap smear. And in that procedure then the cervix, the opening of the
uterus, is dilated or stretched and a suction cannula, like a straw, is introduced
into the uterine cavity and the pregnancy is evacuated in that manner. So that is
typically what happens with a first trimester abortion procedure. With a second
trimester abortion procedure, it is a combination of vacuum extraction, plus
extraction of the fetus with instruments.
(Trial Tr. vol. 1A, 57:12-20, DN 108).
Like medication abortions, there are potential side effects associated with aspiration
abortions. These complications can include excessive bleeding or infection, but also uterine
perforation, which can be more serious. (Trial Tr. vol. 1A, 58:20-60:22, DN 108). According to
the Upadhyay Study, the complication diagnoses for first-trimester aspiration abortions were as
follows: incomplete abortions (0.33%); failed abortions (0.04%); hemorrhaging (0.13%); and
infection (0.27%).15 See Upadhyay Study 180.
Thus, as with medication abortions, the Court finds that aspiration abortions involve
minimal risk to women. The Court further finds based on Dr. Hillard’s testimony that the
complications that can arise from such abortions also usually occur in a nonclinical setting.
(Trial Tr. vol. 1A, 59:11-60:15, DN 108). If the complications were to present while the patient
is still at the abortion facility, “[t]he complications typically can be managed in an outpatient

15

Similarly, the NAS Study notes that “[a]spiration abortions rarely result in complications. In a
recent retrospective analysis of California fee-for-service (FFS) Medicaid claims data, 57 of
almost 35,000 women (0.16 percent) were found to have experienced a serious complication
(hospital admission, surgery, or blood transfusion) after an aspiration abortion.” NAS Study 213 (internal citations omitted).
24

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facility, a physician’s office or a clinic, depending on the type of complication, but serious
complications that would require transfer are really quite rare.” (Trial Tr. vol. 1A, 61:4-7, DN
108).
b.

Impact of Transfer and Transport Agreements on Safety of
Abortions

Having determined that medication and aspiration abortions pose minimal risks to a
patient’s safety, the Court must now determine whether (or the extent to which) transfer or
transport agreements mitigate those risks. Overall, the Court finds that neither type of agreement
improves the safety of abortion procedures in Kentucky.
i.

Transfer and Transport Agreements Provide No
Significant Benefit

EMW Plaintiffs and Planned Parenthood presented substantial evidence demonstrating
that transfer and transport agreements are medically unnecessary because abortion patients are
unlikely to experience abortion-related complications. As discussed previously, Dr. Hillard
testified that complications can usually be managed at the abortion facility or doctor’s office and
only rarely result in a transfer—in as few as 0.03% of the cases. (Trial Tr. vol. 1A, 61:4-7, 62:34, DN 108 (quoting Upadhyay Study 175)).

Thus, transfer and transport agreements are

minimally applicable because they purport to address situations that arise only very rarely.
EMW Plaintiffs and Planned Parenthood further submitted evidence showing that the
required agreements are unnecessary because they are unlikely to benefit a woman suffering
from an abortion-related complication. For instance, Dr. Hillard explained that in the rare
circumstances in which a patient suffers abortion-related complications, the complications
usually arise after the patient has returned home, rendering meaningless any transfer or transport
agreement between the abortion clinic and another entity. (See Trial Tr. vol. 1A, 57:24-58:19,

25

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DN 108).

Dr. Hamilton—Defendants’ expert—failed to rebut that testimony.

In fact, he

essentially conceded that transfer agreements are unnecessary in the real-world because abortion
complications typically first present after the patient has returned home. (Trial Tr. vol. 3B, 15:419, DN 128).
To further demonstrate the inefficacy of the challenged regulations, Dr. Hamilton
testified that, in the context of providing emergency care to a transferring patient, a facility’s
emergency transfer protocols are more important than the existence of an interfacility transfer
agreement. (Trial Tr. vol. 3B, 9:17-24, DN 128). He explained that facilities generally refer to
their transfer protocols—i.e., internal guidelines—rather than transfer agreements when
transferring a patient and that, even without a transfer agreement, a transferring facility can
define its protocols to correspond with a receiving facility’s protocols, thereby enhancing a
patient’s care. (Trial Tr. vol. 3B, 10:19-11:12, DN 128).
Planned Parenthood’s Vice President of Patient Services, Lynne Bunch (“Bunch”),
corroborated the testimony of both Drs. Cook and Marshall that transfer agreements have no
impact on the care patients receive in the emergency room, are not regularly consulted when
patients are received, and are not necessary to protect the health of a patient. (Trial Tr. vol. 3B,
29:3-13, 31:2-10, DN 128).

Bunch noted that local ambulance services are responsive to

emergency calls regardless of a transport agreement and that such agreements do not increase the
quality of care received by patients. (Trial Tr. vol. 3B, 38:21-39:12, DN 128).
The evidence cited by Defendants to support their suggested findings of fact is
unpersuasive. Defendants propose findings that transfer and transport agreements “have the
benefit of optimizing patient outcomes” but do not cite to any medical evidence which supports
this proposition.

(Defs.’ Proposed Findings Fact & Conclusion Law ¶¶ 11-12).

26

Instead,

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Defendants rely on the National Abortion Guidelines (“NAFG”) and an opinion regarding the
safety of office-based surgeries issued by the Kentucky Board of Medical Licensure (“KBML”).
(Defs.’ Proposed Findings Fact & Conclusions Law ¶¶ 11-12). The NAFG guidelines, however,
merely recommend that abortion facilities “consider developing . . . transfer agreement[s] with . .
. hospital[s] outlining the means of communication and transport . . . for emergency transfer of
care.” (Defs.’ Trial Ex. DX01, at 51). Similarly, the KBML opinion notes only that outpatient
surgical facilities ordinarily “have a transfer protocol in effect with a hospital within reasonable
proximity.” (Defs.’ Trial Ex. DX02, at 12). As Defendants’ expert explained, however, an
abortion facility may maintain an internal transfer protocol—and even develop transfer protocols
that coordinate with the transferee hospital’s protocols—without entering into an agreement with
that hospital. (Trial Tr. vol. 3B, 10:19-11:12, DN 128). Thus, Defendants’ cited authority is
unpersuasive.
At trial, Dr. Hamilton noted that the American Medical Association Ambulatory Patient
Safety Group reviewed a Florida study examining complications arising from ambulatory
surgery centers and found that, in 143 instances of complications, 87 arose from cosmetic
procedures, and only four were related to pregnancy terminations. (Trial Tr. vol. 3B, 14:10-22,
DN 128). The Court finds that study and Dr. Hamilton’s testimony about the Florida study
unpersuasive.16

16

This was the only study specifically referenced by Dr. Hamilton. The study does not stand for
the proposition that four pregnancy terminations resulted in emergency transfer of the patient;
rather, the terminations resulted in a “reportable incident,” which the study defines more broadly
than a hospital transfer. See Brett M. Coldiron et al., Office Surgery Incidents: What Seven
Years of Florida Data Show Us, 34 Dermatologic Surgery 285, 286-287 (2008). Because the
report does not conclude that the pregnancy terminations resulted in hospital transfers, this study
offers no support for Defendants’ position.
27

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Dr. Cook corroborated Dr. Hillard’s conclusion regarding the lack of any medical benefit
of transfer agreements to abortion patients’ care. (Trial Tr. vol. 1A, 114:16-17, 115:10-13, DN
108). She explained that in all her years at the University of Louisville, she could not recall one
instance in which U of L Hospital failed to properly care for a patient suffering from an abortion
complication—regardless of the existence of a transfer agreement with the hospital. (Trial Tr.
vol. 1A, 109:17-20, DN 108). She further testified that, because hospitals follow internal
protocols rather than the terms of a transfer agreement when receiving and caring for a transferee
patient, the presence of a hospital transfer agreement does not affect a patient’s clinical care.
(Trial Tr. vol. 1A, 110:14-16, 111:24-113:10, DN 108). These protocols include assessing the
patient to determine the appropriateness of a transfer, obtaining and reviewing the patient’s
medical record, and informing the physician who will be receiving the patient of the patient’s
needs. (Trial Tr. vol. 1A, 111:24-113:10, DN 108).
The explicit function of a written transfer agreement required by KRS 216B.0435 is to
have an agreement “by which . . . the hospital agrees to accept and treat [] patients” with
unforeseen complications occurring at abortion facilities. KRS 216B.0435(1). This mandate,
however, seems to be predicated on the notion that hospitals would have the option to choose not
to provide medical care in these emergent situations.

This is not the case.

In fact, the

Emergency Medical Treatment and Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, requires that
hospitals must provide care to all persons requesting and in need of emergency medical care.17
See 42 U.S.C. § 1395dd(a), (b), (e)(2). Thus, the existence or absence of a transfer agreement
between an abortion facility and an acute care hospital has no effect on access to emergency
17

EMTALA applies to all hospitals with emergency departments and that have signed a
Medicare provider agreement with the federal government, which encompasses virtually all
acute care hospitals. See Nathan S. Richards, Note, Judicial Resolutions of EMTALA Screen
Claims at Summary Judgment, 87 N.Y.U. L. Rev. 591, 592 n.3 (2012).
28

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medical treatment because hospitals have no choice under EMTALA: they must provide medical
care to stabilize all emergency patients. See id. This universal requirement is well illustrated by
the fact that, although no Louisville acute care hospital is presently willing to enter into a transfer
agreement with EMW or Planned Parenthood, every hospital to which a transfer agreement was
proposed has confirmed its willingness to treat any emergency patient presenting from an
abortion facility. (Pls.’ Trial Exs. EMW-PX005, EMW-PX006, EMW-PX007; Intervenor-Pl.’s
Trial Ex. PPINK-PX0057).
Similarly, Dr. Marshall explained that—at least at EMW—the presence of a transport
agreement does not add to a woman’s care because, regardless of whether it maintains such an
agreement, EMW follows its internal protocols when responding to emergency situations.18
(Trial Tr. vol. 1A, 66:11-13; DN 108, Trial Tr. vol. 1B, 36:7-15, 36:22-37:11, DN 112; Pls.’
Trial Ex. EMW-PX207A).

Dr. Marshall testified that EMW dials 911 in the event of an

emergency, and—given that Louisville Fire Engine Company No. 5’s station is near the
facility—emergency personnel from that facility usually respond. (Trial Tr. vol. 1B, 27:21-28:4,
29:23-30:2, DN 112; Pls.’ Trial Ex. EMW-PX202). He further explained that “[t]he best thing to
do [in the event of a medical emergency] is call 911 for EMS to come because their service is so
much faster and their trucks are better equipped and their drivers are much better trained.” (Trial
Tr. vol. 1B, 29:25-30:2, DN 112).

18

EMW had a written transport agreement with Mercy Ambulance Service (“Mercy”) since
approximately 2008, under which the ambulance service agreed to pick up patients from EMW
and transport them to a facility where they could receive care. (Trial Tr. vol. 1B, 28:24-29:10,
DN 112; see also Pls.’ Trial Ex. EMW-PX042, at 2, 5). Despite the written agreement with
Mercy, CHFS rejected the transport agreement as deficient in 2017 because of technical
noncompliance with Kentucky’s regulations. (See Pls.’ Trial Ex. EMW-PX027, at 1-2).
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Kentucky law also diminishes the utility of the required transport agreements. At the
time of the promulgation of 902 KAR 20:360E,19 Kentucky law prohibited ambulance service
providers from “refus[ing] a request for emergency service if a unit is available in the service
area.” 202 KAR 7:501, § 6(8) (2017); see also 202 KAR 7:501, § 6(3) (2017) (“Requests for
emergency service shall be dispatched or notified within two (2) minutes of the call taker
determining the correct address or location of the emergency incident site.”). Thus, similar to
EMTALA’s mandate that hospitals treat emergency patients, this regulation requires emergency
transport by ambulance services regardless of the absence of any transport agreement.
In addition, the Chief of Public Services for Louisville Metro Government, Douglas
Hamilton (“Chief Hamilton”), testified at trial about the necessity of transport agreements from
an emergency response standpoint. (Trial Tr. vol. 1C, 15:14-17, DN 110). In his position, Chief
Hamilton oversees LMEMS, a Ground 1 ambulance service providing the highest level of
service. (Trial Tr. vol. 1C, 15:21-24, 22:7-8, 22:11, DN 110). According to Chief Hamilton,
there are between 22 and 28 ambulances staffed at LMEMS at any time. (Trial Tr. vol. 1C,
23:12-13, DN 110). When an ambulance is dispatched, it will transport to the hospital of the
patient’s choice—even if that hospital is on diversion.20 (Trial Tr. vol. 1C, 32:9-20, DN 110).

19

The regulations applicable to ambulance services have since been amended effective May 4,
2018. The amended regulations are not at issue in this action.
20
“Diversion” is when a hospital is not accepting patients due to mechanical problems, staffing
issues, or illness. (Trial Tr. vol. 1C, 30:20-31:14, DN 110). Although Defendants emphasize
diversions in addressing procedural due process, the possibility of a diversion does not alter the
Court’s findings as to the substantive due process claim. While diversions occasionally occur,
Chief Hamilton testified that the situations were not particularly noteworthy. (Trial Tr. vol. 1C,
30:24-31:4, 31:15-22, DN 110). In such event, LMEMS would still take a patient to the hospital
of the patient’s choice even if that hospital were on diversion. (Trial Tr. vol. 1C, 32:9-20, DN
110). This point further lacks significance since complications typically arise at home where a
transfer or transport agreement is inapplicable.
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When a call is received by 911 dispatch, the dispatcher does not inquire whether the
caller has a transport agreement, and neither the existence nor the absence of such agreements
affects the nature of LMEMS’s response or its response time. (Trial Tr. vol. 1C, 38:17-39:4,
39:9-12, DN 110). Based on his experience, Chief Hamilton believed that transport agreements
were unnecessary for patient safety or timely care. (Trial Tr. vol. 1C, 39:23-40:4, DN 110).
According to Chief Hamilton, “the transport agreement [LMEMS] [has] with Planned
Parenthood is one of the silliest things [he] [had] ever seen . . . because . . . it is in direct conflict
with [LMEMS’s] mission.” (Trial Tr. vol. 1C, 41:10-15, DN 110). LMEMS had responded to
61 service calls for 51 incidents at EMW in the previous 24 months. (Trial Tr. vol. 1C, 34:7-10,
DN 110). Of those calls, however, only three EMW patients needed transport directly from the
clinic to a hospital. (Trial Tr. vol. 1C, 34:11-15, DN 110).
In sum, the Court draws three conclusions from the evidence discussed above. First,
abortion patients are far more likely to experience complications after they have left the abortion
facility. Second, hospitals are required to treat patients with emergent conditions despite the
absence of a transfer agreement, just like ambulance services transport their patients regardless
of a transport agreement. Finally, no evidence supports a finding that emergency response times
are improved by the existence of a transfer or transport agreement. Thus, the evidence reflects
and the Court finds that transfer and transport agreements have no significant impact on the
quality and timeliness of emergency medical care received by abortion patients who experience
complications.
ii.

Defendants Failed to Articulate a Medical Justification
for the Challenged Regulations

Correspondingly, the record contains very little evidence suggesting that transfer and
transport agreements improve the safety of abortions in Kentucky. Dr. Hamilton admitted that

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he was unaware of any studies demonstrating how patient care might improve if outpatient
abortion facilities entered into transfer agreements with hospitals. (Trial Tr. vol. 3B, 12:17-18,
DN 128). Absent such studies, then-Inspector General Silverthorn obviously could not have
relied on them in promulgating the challenged regulations. In fact, as noted above, Silverthorn
did not consult any physicians when drafting the challenged emergency regulations.21 (Trial Tr.
vol. 2A, 30:3-10, DN 115). As Inspector General Silverthorn testified regarding the extent of his
knowledge of the safety of abortion procedures:
Q.
Now, you’re not aware of any time where a patient did not receive proper
care due to a deficiency with either a hospital transfer agreement or an ambulance
agreement; correct?
A.
I do not have any knowledge of such.
Q.
Right. And you’re not aware of any instances in your tenure where the
lack of a transfer or transport agreement caused harm to women; correct?
A.
That is correct.
Q.
And I believe your testimony was that you’re not even sure of whether
abortions are safer than births?
A.
Other than the education I have had during the last 14, 15 months on this
subject, I do not personally have anything to refute what has already been testified
to in this trial.
(Trial Tr. vol. 2A, 10:17-11:4, DN 115). Accordingly, Defendants have not established any
substantial justification for 902 KAR 20:360 Section 10.
iii.

The Challenged
Women’s Health

Statute

Will

Negatively

Impact

EMW Plaintiffs and Planned Parenthood proffered testimony indicating that in the event
KRS 216B.0435 is upheld, EMW—currently the state’s only abortion facility—will likely be
closed, thereby effectively depriving Kentucky women of their ability to obtain elective
abortions in a medical facility in this state. (Hillard Expert Report ¶ 7, DN 63-1). The result

21

Kentucky promulgated the relevant emergency regulation during the pendency of this action
essentially adopting the stringent standards that the Inspector General applied when he informed
EMW in March 2017 that its transfer and transport agreements were deficient.
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would be that many women would either have to travel hundreds of miles to receive a clinical
abortion or bear the risks of self-terminating their pregnancies without professional assistance.22
(Trial Tr. vol. 1A, 88:19-21, DN 108).
This implication is significant, particularly in light of the fact that a large portion of
Planned Parenthood’s and EMW’s patients have limited financial resources. (Trial Tr. vol. 1B,
26:2-3, DN 112). With limited means, these women will have difficulty affording travel to
obtain an abortion, essentially leaving them two options: (1) carrying their pregnancy to term, or
(2) attempting to perform the abortion themselves or outside of a professional medical setting.
(Trial Tr. vol. 1A, 73:4-8, 116:9-10, DN 108).
As Dr. Hillard testified, neither of these options is particularly safe:
I fear that some of those women would carry a pregnancy to term, and that carries
greater risks to—the risk of death, as I mentioned. And I also fear that some of
those women might choose to take the matter into their own hands and induce or
try to induce an abortion on their own. I think there are studies that suggest that
women do that, even in today’s age where many women have access to abortion.
(Trial Tr. vol. 1A, 73:9-10, DN 108). Similarly, Dr. Cook testified that she has treated women
who have received self-inflicted or illegal abortions, and that these women were often very sick
and had to be x-rayed to ensure that they did not have some metal object inside of their abdomen.
(Trial Tr. vol. 1B, 115:14-24, DN 112).
From the foregoing, the Court concludes that: (i) transfer and transport agreements
provide no quantifiable benefit to women’s health; (ii) enforcing the challenged statute and
regulations would pose a threat to the health and safety of women in Kentucky; and (iii) the
challenged statute and regulations impose a significant burden upon women who are deciding
whether to undergo an abortion.
22

Dr. Cook testified that once a woman has decided that she is unable to continue a pregnancy,
she will do everything in her power to end the pregnancy. (Trial Tr. vol. 1A, 116:9-10, DN 108).
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C.

Efforts to Comply with KRS 216B.0435 and 902 KAR 20:360 Section 10

At trial, EMW Plaintiffs and Planned Parenthood presented evidence regarding their
efforts to obtain the transfer and transport agreements required under Kentucky law. Both EMW
and Planned Parenthood were unable to comply with the requirements to the satisfaction of the
CHFS.
1.

EMW Plaintiffs

Since at least September 12, 2008, EMW has had a transport agreement with Mercy.
(Pls.’ Trial Ex. EMW-PX042, at 5). In relevant part, the transport agreement provided:
Mercy Ambulance . . . agrees to continue to provide medical transportation to
EMW Women’s Surgical Center patients in Louisville, Kentucky. Mercy
Ambulance staff will give an estimated time when ambulance will arrive, at
which time EMW can opt to wait for Mercy Ambulance service or call another
ambulance service for transportation.
(Pls.’ Trial Ex. EMW-PX042, at 5). On February 1, 2016, EMW entered into a new but nearly
identical agreement with Mercy. (Pls.’ Trial Ex. EMW-PX042, at 2).
Predating this litigation and EMW’s license renewal in 2016, EMW also had a transfer
agreement. In February 2014, EMW entered into an agreement executed by Dr. Sharmila
Makhija, Chair of the OB/GYN Department at U of L Hospital. (Pls.’ Trial Ex. EMW-PX025).
The agreement specifically provided:
For patient emergencies that require tertiary level care, we developed a protector
for transitioning the care of parties to the University of Louisville Department of
Obstetrics, Gynecology and Women’s Health. Emergencies can consist of, but
not limited to, suspected or identified perforations, extending cervical or vaginal
lacerations, and postoperative hemorrhage. Once an emergency is identified and
the EMW physician determines higher level care is required:
1.
The EMW physician will call the Gynecology pager . . . to identify
the attending physician. If unable to reach the gynecology team,
call the L&D physicians for assistance . . . .
2.
Pertinent patient information and transfer of care will be discussed
with the gynecology team and attending.

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3.
4.
5.

EMW will arrange ambulance transportation to the University of
Louisville Hospital to resume care under the Department of
Obstetrics, Gynecology, and Women’s Health faculty.
Medical records will be photocopied and transferred with the
patient.
Gynecology team will notify Emergency Room staff of pending
patient transfer.

(Pls.’ Trial Ex. EMW-PX025, at 1).
It appears uncontested by the parties that EMW’s transfer and transport agreements did
not face any significant scrutiny and were accepted by CHFS prior to 2017. That changed after
Silverthorn became Inspector General in July 2016. (Trial Tr. vol. 2A, 9:7-11, DN 115). While
Silverthorn’s predecessor had notified EMW on April 27, 2016, that its license had been renewed
for June 2016 through May 2017, CHFS re-examined the transfer and transport agreements
submitted by EMW under Silverthorn’s watch. (Pls.’ Trial Ex. EMW-PX037, at 1; Trial Tr. vol.
2A, 32:13-20, DN 115).
On March 13, 2017, Silverthorn wrote to EMW outlining its purported failures to comply
with Kentucky law. (Pls.’ Trial Ex. EMW-PX027, at 1-2; Trial Tr. vol. 2A, 32:13-20, DN 115).
In particular, he noted: (i) the transfer agreement was not signed by an acceptable representative
of U of L Hospital; (ii) his suspicion that the agreement may no longer be valid because U of L
Hospital had previously withdrawn from a prior agreement; (iii) the named transferee was
incorrect; and (iv) the transport agreement did “not mandate with reasonable certainty the
transport of the licensee’s patients” to the acute care hospital named in the transfer agreement.
Despite Silverthorn’s criticism, it does not appear that these points violated either the statute or
regulation in existence at the time. (Pls.’ Trial Ex. EMW-PX027, at 1-2; Trial Tr. vol. 2A,
32:13-20, DN 115).

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In response to Silverthorn’s letter, EMW and Mercy signed an addendum to their existing
agreement providing that “[f]or clarification, this shall include providing medical transportation
to University Medical Center Inc., a/k/a University Hospital or the hospital selected by the
patient.” (Pls.’ Trial Ex. EMW-PX033, at 1). EMW contacted U of L Hospital requesting the
signature of a hospital administrator on the transfer agreement, which was subsequently signed
by Ken Marshall (“Marshall”) as President/CEO on March 20, 2017. (Pls.’ Trial Ex. EMWPX063, at 1-2; Pls.’ Trial Ex. EMW-PX025, at 1). Marshall then promptly about-faced and
canceled the transfer agreement on the same day because he was concerned that he did not have
the authority to sign the agreement. (K. Marshall Dep. 35:15-25, June 22, 2017, DN 136-1).
On March 23, 2017, Silverthorn sent an e-mail message to EMW’s counsel agreeing to
grant an extension to April 3, 2017, for EMW to comply with the transfer and transport
agreement requirements. (Pls.’ Trial Ex. EMW-PX034, at 1). Silverthorn also attached a
document notifying EMW that the OIG was imposing additional requirements not provided by
the statute or regulation at the time, including: (i) geographic limitations (in terms of proximity
to the abortion facility) as to the acute care hospital entering into the transfer agreement; (ii) the
authorized representatives who could sign a transfer agreement on behalf of an acute care
hospital, and (iii) the obligation that the contracted ambulance service respond immediately and
take the patient to the acute care facility that had entered into the transfer agreement with the
abortion facility unless otherwise directed by the patient. (Pls.’ Trial Ex. EMW-PX034, at 2).
On March 29, 2017, EMW Plaintiffs filed this lawsuit challenging the Kentucky laws
requiring transfer and transport agreements for abortion clinics. On March 31, 2017—the same
day this Court entered its temporary restraining order prohibiting the enforcement of the
challenged laws—Silverthorn sent a letter to EMW seeking to clarify the prior correspondence

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from March 13 and 24. (Defs.’ Trial Ex. DX12). In particular, Silverthorn noted that he would
authorize the revocation of EMW’s license if it failed to comply with the transport and transfer
agreement requirements by April 3, 2017, and that the “revocation . . . shall become final and
conclusive thirty (30) days after notice is given, unless the applicant or licensee, within the thirty
(30) day period, shall file a request in writing for a hearing with [] [CHFS].” (Defs.’ Trial Ex.
DX12, at 1 (internal quotation marks omitted) (quoting KRS 216B.105(2))).
Notwithstanding this litigation and the temporary restraining order (which later became a
preliminary injunction), EMW continued to seek transfer agreements with acute care facilities.
On July 27, 2017, Dr. Marshall wrote letters to the presidents of local hospitals requesting their
participation in a more extensive transfer agreement and providing a copy of the proposed
agreement. (Pls.’ Trial Ex. EMW-PX180, at 1-8; Pls.’ Trial Ex. EMW-PX181, at 1-8; Pls.’ Trial
Ex. EMW-PX182, at 1-8). Every hospital refused to sign the proposed agreements, but each
confirmed it would provide care to anyone seeking emergency treatment. (Pls.’ Trial Ex. EMWPX005, at 1; Pls.’ Trial Ex. EMW-PX007, at 1; Pls.’ Trial Ex. EMW-PX006, at 1).
Thus, based on the evidence in the record, the Court finds that, despite the best efforts of
EMW Plaintiffs, they are unable to obtain transfer and transport agreements as required by KRS
216B.0435.23 Unless EMW is able to obtain these agreements or a waiver of the transfer
agreement requirement, it will cease to provide abortion services in Kentucky.
2.

Planned Parenthood

As discussed above, CHFS rejected the transfer agreements provided by Planned
Parenthood with University of Kentucky Hospital and Clark Memorial Hospital in Indiana.
23

Although local ambulances services have been willing to sign a transport agreement, such
agreements cannot pass muster because they must reference a valid transfer agreement with a
hospital to which the ambulance services are required to transfer the patients absent some other
directive from the patients. See 902 KAR 20:360, § 10(4)(c)(4) & (5).
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(Trial Tr. vol. 3A, 27:12-28:17, 33:21-34:17, DN 126; Intervenor-Pl.’s Trial Exs. PPINKPX0010, PPINK-PX0011, PPINK-PX0012, PPINK-PX0014). No other Louisville area hospital
has been willing to sign transfer agreements with Planned Parenthood. Without a transfer
agreement in place meeting the current requirements of 902 KAR 20:360 Section 10, Planned
Parenthood is unable to meet the statutory requirements for a license to provide abortion
services. (Trial Tr. vol. 3A, 34:18-23, DN 126).
D.

Effects of KRS 216B.0435 and 902 KAR 20:360 Section 10 on EMW
Plaintiffs, Planned Parenthood, and the Availability of Abortions in
Kentucky

The evidence presented at trial established that neither EMW nor Planned Parenthood has
been able to satisfy the requirements of KRS 216B.0435 and 902 KAR 20:360 Section 10, as
revised.

While the pre-2017 regulation was not, on its face, an impediment to obtaining

licensure, Silverthorn’s interpretation of the prior regulation as applied to EMW’s transfer and
transport agreements resulted in the threatened revocation of EMW’s license and the
Commonwealth’s decision not to issue a license to Planned Parenthood. The present version of
902 KAR 20:360 Section 10, both as written and as applied, would prevent EMW’s continued
operation as an abortion facility and would likewise preclude the licensure of Planned
Parenthood’s abortion facility.
Though Defendants have pointed to the OIG’s discretion to waive the required
agreements for successive ninety-day periods, the record demonstrates that the uncertainty of a
discretionary waiver would make it exceedingly difficult for an abortion facility to survive. Such
facilities would not likely be able to hire and keep staff without knowing whether they could
continue operating beyond ninety days, and no prudent organization would risk millions of
dollars investing in such a facility whose temporary license would be based on the administrative

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whim of the Inspector General. (Trial Tr. vol. 1B, 79:24-81:20, DN 112; Trial Tr. vol. 2A,
80:16-23, DN 115; Trial Tr. vol. 2B, 87:9-88:2, 104:11-20, DN 116; Trial Tr. vol. 3A, 51:2452:8, DN 126).
If EMW ceased to perform abortions in Kentucky, there would be no abortion facilities
within the Commonwealth. As a result, Kentucky women seeking an abortion would have to
travel to another state for abortion services. This impediment would likely mean that some
women would not be able to exercise their constitutional right to have an abortion, and women
still seeking abortions would incur greater costs and spend more time traveling to abortion
facilities in other states. These challenges pose a substantial burden on Kentucky women. The
absence of abortion services in Kentucky would result in expected delays in care and cause a
higher risk of complications. The unavailability of legal abortions in Kentucky would also likely
increase the number of self-performed, unlicensed, and unsafe abortions for Kentucky women.
(Trial Tr. vol. 1A, 73:11-15, 116:6-11, DN 108).
KRS 216B.0435 and 902 KAR 20:360 Section 10 provide no meaningful benefit to
women’s health. On the other hand, the enforcement of these laws creates an impediment to the
availability of abortions by virtually assuring that abortion facilities will not operate in Kentucky,
which in turn poses a risk to women’s health.

Thus, the burdens imposed by these laws

regulating abortion far outweigh any benefits to Kentucky women.
IV.

CONCLUSIONS OF LAW

As the Kentucky Supreme Court noted in 2016, “[a]bortion is likely the most divisive
issue in a divisive political culture. . . . [T]he issues of abortion and access to those procedures
stoke the passions of the collective body politic like no others . . . .” Eubanks & Marshall of
Lexington, PSC v. Commonwealth, No. 2016-SC-000328-I, 2016 WL 4555927, at *3 (Ky. Aug.

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25, 2016). Of course, no moral or religious considerations bear on the resolution of this dispute,
for it is well-settled that the fundamental right to privacy contained in the Due Process Clause of
the Fourteenth Amendment protects a woman’s right to choose to have an abortion, subject to
certain limitations. See Roe, 410 U.S. at 153. Nevertheless, as the U.S. Supreme Court has
repeatedly recognized, while there is a constitutional right to have an abortion, states also have
“a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed
under circumstances that [e]nsure maximum safety for the patient.” Id. at 150; see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992); Whole Woman’s Health, 136 S. Ct. at
2309 (internal quotation marks omitted) (quoting Roe, 410 U.S. at 150).
As a preliminary matter, Defendants challenge the standing of EMW Plaintiffs and
Planned Parenthood to assert some of the claims in this action. See Long John Silvers, Inc. v.
Nickleson, 923 F. Supp. 2d 1004, 1010 (W.D. Ky. 2013). In challenging Defendants’ actions,
Plaintiffs have asserted various claims under the U.S. Constitution.

In particular, EMW

Plaintiffs and Planned Parenthood claim that: (i) Defendants’ actions violated their substantive
due process rights under the Fourteenth Amendment; and (ii) Kentucky law improperly allows
hospitals and ambulance services to determine whether abortion facilities are licensed through
the requirement of transfer and transport agreements, which constitutes an unlawful delegation in
violation of the Fourteenth Amendment. (Pls.’ Verified Compl. ¶¶ 56-57, 60-61; Intervenor-Pl.’s
Compl. ¶¶ 55-63, 73-77). Planned Parenthood additionally alleges that Defendants violated its
right of equal protection under the Fourteenth Amendment. (Intervenor-Pl.’s Compl. ¶¶ 64-67).
Each of these issues and claims is addressed below.24

24

In addition, EMW Plaintiffs and Planned Parenthood made claims for procedural due process
violations, Planned Parenthood asserted claims under the Full Faith and Credit Clause and for
void-for-vagueness, and EMW Plaintiffs made a claim of First Amendment retaliation. (Pls.’
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A.

Standing

The Court must first consider Defendants’ contention that EMW Plaintiffs and Planned
Parenthood lack standing to assert some of their claims in this case. (Defs.’ Post-Trial Br. 4245). Specifically, Defendants claim that Planned Parenthood lacks first-party and third-party
standing to assert a substantive due process claim because it lacks a current license to operate as
an abortion facility. (Defs.’ Post-Trial Br. 42-43). Defendants also argue that EMW Plaintiffs
cannot assert their substantive due process claim on behalf of their prospective patients because
there are “genuine conflicts” between their interests and those of their patients, and their patients
do not face any hindrance to assert their own claims.25 (Defs.’ Post-Trial Br. 43-44).
“Standing is the threshold question in every federal case. The Supreme Court has stated
that the standing requirement limits federal court jurisdiction to actual controversies so that the
judicial process is not transformed into a vehicle for the vindication of the value interests of
concerned bystanders.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (internal
quotation marks omitted) (internal citation omitted) (citation omitted). As a result, standing “is a
jurisdictional requirement.” Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915 (6th
Cir. 2002).

Verified Compl. ¶¶ 58-59, 62-63; Intervenor-Pl.’s Compl. ¶¶ 68-72, 78-86). Because EMW
Plaintiffs and Planned Parenthood failed to address these claims in their pre- and post-trial filings
and did not present proof on these claims at trial, these claims will be dismissed as waived. See
DW Data, Inc. v. C. Coakley Relocation Sys., Inc., 951 F. Supp. 2d 1037, 1047 (N.D. Ill. 2013);
Christen G. v. Lower Merion Sch. Dist., 919 F. Supp. 793, 799 (E.D. Pa. 1996); (see IntervenorPl.’s Proposed Findings Fact & Conclusions Law 53 n.13).
25
Defendants also contend that EMW Plaintiffs and Planned Parenthood cannot assert thirdparty claims on behalf of medical residents. (Defs.’ Post-Trial Br. 45). EMW Plaintiffs and
Planned Parenthood’s Complaints make no such claims, so this point is moot.
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1.

Planned Parenthood – First-Party Substantive Due Process Claim

Planned Parenthood must establish that it has first-party standing to assert its substantive
due process claim. As the Sixth Circuit has explained:
[A] plaintiff must [] satisfy three prudential standing restrictions. First, a plaintiff
must “assert his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.” Second, a plaintiff's claim must be
more than a “generalized grievance” that is pervasively shared by a large class of
citizens. Third, in statutory cases, the plaintiff’s claim must fall within the “zone
of interests” regulated by the statute in question. These additional restrictions
enforce the principle that, “as a prudential matter, the plaintiff must be a proper
proponent, and the action a proper vehicle, to vindicate the rights asserted.”
Coyne, 183 F.3d at 494 (internal citations omitted) (citation omitted).
Defendants argue that Planned Parenthood lacks first-party standing because a first-time
applicant for a license to operate an abortion facility “do[es] not have a property interest so as to
entitle [it] to procedural or substantive due process rights in the same way that an existing permit
holder might demand.” Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)
(internal quotation marks omitted) (quoting Wojcik v. City of Romulus, 257 F.3d 600, 610 (6th
Cir. 2001)). Baird, however, dealt with the procedural due process rights of a first-time abortion
facility applicant, and therefore utilized the quoted language from Wojcik—an entertainment
permit case—as dicta in relation to a procedural due process claim. Furthermore, in this instance
Planned Parenthood was not a mere applicant but had been informed by CHFS that it could begin
providing abortion services at the time the challenged regulations became an issue.26 See Baird,
438 F.3d at 611-12 & n.11 (noting that plaintiffs have a constitutionally-protected property
26

Defendants’ characterization of Planned Parenthood’s status as a mere license applicant, as
well as their contention that Planned Parenthood provided “23 unlicensed and illegal abortions []
during December 2015 and January 2016” is not well-taken. (Defs.’ Post-Trial Br. 43). As
discussed in the Court’s findings of fact, Planned Parenthood was advised by then-Inspector
General Mynear that its application was in order such that it could perform abortions in
anticipation of an inspection that would complete the licensing process. (Trial Tr. vol. 2B,
74:10-19, 82:6-15, DN 116; Intervenor-Pl.’s Trial Ex. PPINK-PX0213).
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interest in the continued operation of an existing business). Planned Parenthood therefore has
standing to pursue its first-party substantive due process claim.
2.

Third-Party Substantive Due Process Claims

Defendants contend that Planned Parenthood cannot “assert third-party claims on behalf
of future, hypothetical patients . . . with whom it ‘has no relationship.’” (Defs.’ Post-Trial Br. 43
(quoting Kowalski v. Tesmer, 543 U.S. 125, 130-31 (2004) (declining to confer third-party
standing where “a future attorney-client relationship with as yet unascertained Michigan criminal
defendants” was at issue))). Similarly, Defendants contend that EMW Plaintiffs cannot maintain
a third-party substantive due process claim because of the lack of a “close relationship” to the
third party and because there is no true hindrance to abortion patients’ ability to assert their own
legal claims. (Defs.’ Post-Trial Br. 43-44).
Third-party standing exists “where the litigants challenge statutes which regulate their
activity and, as a result, violate the rights of third parties.” Planned Parenthood Ass’n of
Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987). When asserting these
types of claims, plaintiffs “have uniformly been permitted to assert the rights of the affected third
parties.” Id. (citing Craig v. Boren, 429 U.S. 190, 194-97 (1976); Eisenstadt v. Baird, 405 U.S.
438, 443-46 (1972)); see also Singleton v. Wulff, 428 U.S. 106, 117 (1976) (“Aside from the
woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of
the State’s interference with, or discrimination against, that decision.”); Haskell v. Wash. Twp.,
635 F. Supp. 550, 551-55 (S.D. Ohio 1986), rev’d on other grounds, 864 F.2d 1266 (6th Cir.
1988) (holding that a doctor has first- and third-party standing to challenge a law that would have
prevented him from opening an abortion clinic).

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Defendants’ challenge to the third-party standing of both EMW Plaintiffs and Planned
Parenthood contradicts well-established law that abortion providers have standing to sue on
behalf of their patients. This argument is therefore rejected.
B.

Fourteenth Amendment – Substantive Due Process

Women in the United States have “a substantive due-process right to terminate a
pregnancy before the fetus is viable.” W. Ala. Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244,
1248 (M.D. Ala. 2017); see also Roe, 410 U.S. at 153. EMW Plaintiffs and Planned Parenthood
challenge the constitutionality of KRS 216B.0435 and 902 KAR 20:360 Section 10 both as
applied and facially. (Pls.’ Verified Compl. ¶ 57; Intervenor-Pl.’s Compl. ¶¶ 57, 60).
1.

As-Applied Challenge

In an as-applied challenge, a court must determine the constitutionality of the challenged
laws as applied to the parties before the court. See generally City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 758-59 (1988).

In this case, EMW Plaintiffs and Planned

Parenthood’s primary argument is that the challenged laws impose an undue burden upon the
right of women to obtain an abortion. (Pls.’ Verified Compl. ¶¶ 56-57; Intervenor-Pl.’s Compl.
¶¶ 55-63). As outlined below, the challenged laws are unconstitutional as applied to EMW
Plaintiffs and Planned Parenthood.
a.

Legal Standard

While states may pass laws regulating abortion, such regulation cannot impose an undue
burden on a woman’s right to obtain an abortion. See Casey, 505 U.S. at 878, 881. “A finding
of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or
effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus.” Id. at 877. “[A] statute which . . . has the [purpose or] effect of placing a substantial

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obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its
legitimate ends.” Id.; Whole Woman’s Health, 136 S. Ct. at 2309. Defendants’ contention that
the Court should apply rational basis analysis flies in the face of Casey and the recent decision in
Whole Woman’s Health, and is wholly without merit.
Undue burden analysis requires courts to “consider the burdens a law imposes on
abortion access together with the benefits those laws confer.” Whole Woman’s Health, 136 S.
Ct. at 2309 (citing Casey, 505 U.S. at 887-98). In balancing these interests, courts may “place[]
considerable weight upon evidence and argument presented in judicial proceedings” and need
not leave questions of medical uncertainty to be resolved by the legislative branch. Id. at 2310
“Court[s] retain[] an independent constitutional duty to review factual findings where
constitutional rights are at stake.” Gonzales v. Carhart, 550 U.S. 124, 165 (2007) (citing
Crowell v. Benson, 285 U.S. 22, 60 (1932)).
In analyzing whether the burden imposed by an abortion regulation is undue, courts must
consider the impact of the regulation on the closure of abortion facilities and reduction in the
number of abortion providers within the state. See Whole Woman’s Health, 136 S. Ct. at 2313.
Courts must also examine “additional burden[s]” faced by women as a result of reduced abortion
access, which may include “longer waiting times, [] increased crowding”, and “increased driving
distances” to obtain abortion services.

Id.

“Courts are free to base their findings on

commonsense inferences drawn from the evidence.” Id. at 2317; see also id. (accepting the trial
court’s inference that closing four of five abortion clinics in Texas would overload the remaining
facility’s capacity to perform abortion procedures).
In the U.S. Supreme Court’s most recent decision addressing the regulation of abortions,
the Court struck down a Texas law requiring physicians to maintain hospital admitting

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privileges. See id. at 2318. The Court noted that even before the imposition of the admitting
privileges requirements, Texas abortion facilities were safe and were required to “meet a host of
health and safety requirements.” Id. at 2314. The Court “found nothing in Texas’ record
evidence that show[ed] that, compared to prior law (which required a ‘working arrangement’
with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in
protecting women’s health.” Id. at 2311; see also id. at 2311-12 (“[W]hen directly asked at oral
argument whether Texas knew of a single instance in which the new requirement would have
helped even one woman obtain better treatment, Texas admitted that there was no evidence in the
record of such a case.” (citation omitted)).
After reasoning that the law provided little to no benefit to women’s health, the Supreme
Court found that the challenged regulation “place[d] a ‘substantial obstacle in the path of a
woman’s choice.’” Id. at 2312 (quoting Casey, 505 U.S. at 877). In analyzing that burden, the
Court considered the cumulative effect of the statute’s impact and focused its analysis on
whether the law’s purported benefits justified the burdens. The Court reasoned:
In our view, the record contains sufficient evidence that the admitting-privileges
requirement led to the closure of half of Texas’ clinics, or thereabouts. Those
closures meant fewer doctors, longer waiting times, and increased crowding.
Record evidence also supports the finding that after the admitting-privileges
provision went into effect, the “number of women of reproductive age living in a
county . . . more than 150 miles from a provider increased from approximately
86,000 to 400,000 . . . and the number of women living in a county more than 200
miles from a provider from approximately 10,000 to 290,000.” We recognize that
increased driving distances do not always constitute an “undue burden.” But here,
those increases are but one additional burden, which, when taken together with
others that the closings brought about, and when viewed in light of the virtual
absence of any health benefit, lead us to conclude that the record adequately
supports the District Court’s “undue burden” conclusion.
Id. at 2313 (internal citations omitted); see also Planned Parenthood Se., Inc. v. Strange, 9 F.
Supp. 3d 1272, 1287 (M.D. Ala. 2014) (“[T]he heart of this test is the relationship between the

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severity of the obstacle and the weight of justification the State must offer to warrant that
obstacle.

. . . [T]he more severe the obstacle a regulation creates, the more robust the

government’s justification must be, both in terms of how much benefit the regulation provides
towards achieving the State’s interests and in terms of how realistic it is the regulation will
actually achieve that benefit.” (internal citations omitted)); Planned Parenthood of Wis., Inc. v.
Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013) (“The feebler the [articulated state interest], the
likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.”).
The Court further explained that the regulations would require approximately half of the abortion
facilities in Texas to close, resulting in “fewer doctors, longer waiting times, and increased
crowding.” Id. at 2313. Because the burdens imposed by the regulations vastly outweighed the
“virtual absence” of any benefits derived therefrom, the Supreme Court held the regulation was
unconstitutional under Casey. See Whole Woman’s Health, 136 S. Ct. at 2313.
Thus, the Supreme Court’s recent decision in Whole Woman’s Health has further
clarified the test articulated in Casey. This Court will apply that analysis in addressing the
substantive due process claims.
b.

KRS 216B.0435 and 902 KAR 20:360 Section 10 Place an
Undue Burden on Women’s Right to Decide Whether to Have
an Abortion
i.

Kentucky’s Interest in Improving Women’s Health

Based on the evidence and the findings of fact outlined above—as well as all reasonable
inferences drawn from the facts—the Court concludes that the transfer and transport agreements
required by Kentucky law provide virtually no health benefits to women.

Similar to the

challenged laws in Whole Woman’s Health, neither KRS 216B.0435 nor 902 KAR 20:360

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Section 10 advances Kentucky’s interest in protecting women’s health and safety. See Whole
Woman’s Health, 136 S. Ct. at 2311.
All evidence submitted in this matter establishes that abortion procedures performed in
Kentucky are safe.27 In fact, Dr. Marshall testified that he has performed approximately 3,000
abortions a year for nearly 40 years and that he has never had a patient die because of the
procedure. (Trial Tr. vol. 1B, 23:9-20, DN 112). He further explained that the ratio of hospital
admissions to abortions is about one in 2,000. (Trial Tr. vol. 1B, 23:14-16, DN 112). Moreover,
when complications arise, they typically occur long after women have left the abortion facility.
(Trial Tr. vol. 1A, 57:24-58:19, DN 108). In those situations, women travel directly to the
nearest emergency room—especially if the abortion facility where they had the procedure is not
nearby. (Trial Tr. vol. 1A, 58:12-19, DN 108). Therefore, the existence or absence of transfer or
transport agreements between abortion clinics and hospitals or ambulance services has no impact
on the vast majority of the rare post-abortion complications.
Just as in Whole Woman’s Health, even in the exceptional case where complications arise
while women are still at the abortion facility, there is no evidence in the record that any
complications from abortions performed in Kentucky have been treated improperly in even one
instance or that negative outcomes would have been avoided if an abortion facility had a transfer

27

Although the Court’s findings are based on the evidence presented in this case, other courts
have uniformly reached the same conclusion. See, e.g., Planned Parenthood of the Heartland v.
Reynolds ex rel. State, No. 17-1579, 2018 WL 3192941, at *4 (Iowa June 29, 2018); June Med.
Servs., LLC v. Kliebert, 250 F. Supp. 3d 27, 58 (M.D. La. 2017); Whole Woman’s Health, 136 S.
Ct. at 2315; Planned Parenthood of The Great Nw. v. State, 375 P.3d 1122, 1141 (Alaska 2016);
Van Hollen, 94 F. Supp. 3d at 970; Planned Parenthood of Greater Tex. Surgical Health Servs.
v. Abbott, 769 F.3d 330, 350 (5th Cir. 2014); Planned Parenthood Ariz., Inc. v. Humble, 13 F.
Supp. 3d 1017, 1022 (D. Ariz.), rev’d and remanded, 753 F.3d 905 (9th Cir. 2014); Stuart v.
Loomis, 992 F. Supp. 2d 585, 590 (M.D.N.C. 2014); N. Fla. Women’s Health & Counseling
Servs., Inc. v. State, 866 So. 2d 612, 652 (Fla. 2003); Doe v. Bolton, 410 U.S. 179, 217 (1973)
(Douglas, J., concurring).
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or transport agreement in place. See Whole Woman’s Health, 136 S. Ct. at 2311-12. The
evidence reflects that LMEMS is responsive to 911 calls and a municipal fire station is in close
proximity to EMW’s facility regardless of whether EMW has a contract with LMEMS to provide
emergency transport. (Trial Tr. vol. 1C, 27:3-15, 28:4-5, 28:16-30:15, DN 110). Moreover,
Inspector General Silverthorn conceded that he was unaware of any incident where a woman
received improper care due to a deficient transfer or transport agreement, or to the lack of such
an agreement. (Trial Tr. vol. 2A, 10:17-11:4, DN 115). Dr. Hamilton similarly admitted that he
was neither aware of any Kentucky women receiving improper care as a result of the absence of
a transfer agreement, nor did he know of any study addressing the impact of such agreements.
(Trial Tr. vol. 3A, 112:1-3, 118:23-119:3, DN 126; Trial Tr. vol. 3B, 12:15-18, DN 128).
As the Supreme Court noted in Whole Woman’s Health with regard to the admitting
privileges requirement for Texas abortion facilities, “there was no significant health-related
problem that the new law helped to cure.” Whole Woman’s Health, 136 S. Ct. at 2311. This
statement is equally applicable to the Kentucky laws at issue here.
In sum, the record in this case demonstrates that the challenged regulations do not
advance a legitimate interest in promoting the health of women seeking abortions in Kentucky.
Based on Whole Woman’s Health and the medical evidence in the record, the Court concludes
that the challenged regulations are not medically necessary and do absolutely nothing to further
the health and safety of women seeking abortions in the Commonwealth of Kentucky.
ii.

Burdens Imposed on Women

The burden imposed by the regulations at issue relates to their impact on abortion
accessibility. As noted, the regulations will effectively eliminate legal abortion in Kentucky by
closing the only operating abortion facility—EMW—and make it unlikely that any new abortion

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facility will open in Kentucky. This is problematic. The evidence reflects that, in 2016, roughly
2,800 women obtained abortions in Kentucky. (Trial Tr. vol. 3B, 7:7-18, DN 128). Given that
EMW performed almost all of those procedures, the closure of EMW and Planned Parenthood’s
inability to obtain licensure for its new Louisville facility would prevent virtually all Kentucky
women from obtaining abortions within this state. (Trial Tr. vol. 2A, 7:17-18, DN 115).
Women who are unable to access abortions at licensed abortion facilities are subject to a
number of burdens and risks.

For instance, these women may resort to self-performed,

unlicensed, and unsafe abortion procedures. (Trial Tr. vol. 2A, 7:17-18, DN 115); see Whole
Woman’s Health, 136 S. Ct. at 2321 (Ginsburg, J., concurring) (“When a State severely limits
access to safe and legal procedures, women in desperate circumstances may resort to unlicensed
rogue practitioners, faute de mieux, at great risk to their health and safety.”); Planned
Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1362-63 (M.D. Ala. 2014) (noting that
state regulation makes it significantly more difficult to obtain a legal abortion, and such
difficulty “creates a greater risk that women would attempt to obtain an abortion illegally without
medical supervision,” or “[a]t worst, there is a danger that women would attempt surgical
abortions on themselves.”). Alternatively, in the absence of any licensed abortion facilities in
Kentucky, women would have to travel to other states for legitimate abortion services. (Trial Tr.
vol. 1A, 88:19-21, DN 108). Many of those women would be traveling much longer distances to
receive abortion services, which would impose a severe burden—particularly for low-income
women who compose a majority of Kentucky abortion patients. See Whole Woman’s Health,
136 S. Ct. at 2313 (recognizing that women seeking abortions are burdened by having to travel
long distances to obtain them). Without the choice of an abortion, a woman’s only other option

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would be to carry the pregnancy to term—an option that carries with it significant health risks.
(Trial Tr. vol. 1A, 73:9-10, DN 108).
Contending that the regulations do not impose an unconstitutional burden on a woman’s
access to abortion, Defendants point to the availability of abortion facilities in other states. At
trial, Defendants presented several charts depicting the mileage from various Kentucky cities to
abortion facilities in Indiana, Missouri, Ohio, Tennessee, and West Virginia, and maps reflecting
radii of 125, 150, and 200 miles from abortion facilities in those other states. (Defs.’ Trial Exs.
13-16).
Notwithstanding the fact that these charts do not demonstrate the actual distance women
would have to travel to obtain an abortion, the availability of abortion services in other states
does not cure the infirmities presently imposed by Kentucky law. Defendants’ contention that it
can trample upon the rights of Kentucky women because those rights could be exercised in other
states is without merit. As the U.S. Supreme Court stated Missouri ex rel. Gaines v. Canada,
305 U.S. 337 (1938):
[E]ach [state is] responsible for its own laws establishing the rights and duties of
persons within its borders. It is an obligation the burden of which cannot be cast
by one State upon another, and no State can be excused from performance by
what another State may do or fail to do. That separate responsibility of each State
within its own sphere is of the essence of statehood maintained under our dual
system.
Id. at 350. Recognizing that Gaines involved an equal protection challenge to a law school’s
refusal to admit an African-American applicant, the concept is equally applicable here. Most
assuredly, Kentucky could not defend a gag order on its citizens by suggesting that they could
travel to Tennessee or Ohio to exercise their rights to free speech. Other courts have reached this
same conclusion regarding states’ unconstitutional restrictions on abortion rights. See, e.g., W.
Ala. Women’s Ctr. v. Miller, 299 F. Supp. 3d 1244, 1261 n.11 (M.D. Ala. 2017) (“Moreover,

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although some women in Alabama could continue to access abortions beginning at 15 weeks by
traveling out of state, courts have refused to allow out-of-jurisdiction access to cure withinjurisdiction restrictions.” (citations omitted)); Strange, 33 F. Supp. 3d at 1360-61 (“[T]he State
could identify no precedent for a court to consider conduct outside the political boundaries of a
jurisdiction in order to justify the constitutionality of actions by that jurisdiction.

On the

contrary, in areas ranging from First Amendment free speech to Fourteenth Amendment equal
protection to Second Amendment firearm rights, courts have refused to allow out-of-jurisdiction
access to cure within-jurisdiction restrictions.”); Planned Parenthood of Wis., Inc. v. Schimel,
806 F.3d 908, 918 (7th Cir. 2015) (“The logic of the state’s position is that it could forbid both
abortion clinics in Milwaukee to perform abortions on anyone living in that city, given that the
Chicago clinics are only about 90 miles away (and one clinic, in the northern suburbs of
Chicago, is only 74 miles from Milwaukee’s city center).

The state’s position is

untenable. . . . [T]he proposition that ‘the harm to a constitutional right [can be] measured by the
extent to which it can be exercised in another jurisdiction . . . [is] a profoundly mistaken
assumption.’” (alterations in original) (quoting Ezell v. City of Chicago, 651 F.3d 684, 697 (7th
Cir. 2011))); Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 457 (5th Cir. 2014) (“[A]
state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal
constitutional rights, a principle that obviously has trenchant relevance here. Pre-viability, a
woman has the constitutional right to end her pregnancy by abortion. H. B. 1390 effectively
extinguishes that right within Mississippi’s borders. Gaines locks the gate for Mississippi to
escape to another state’s protective umbrella and thus requires us to conduct the undue burden
inquiry by looking only at the ability of Mississippi women to exercise their right within
Mississippi’s borders.” (discussing Gaines)).

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Under the considerable authority of these precedents, the Court rejects Defendants’
invitation to consider the availability of abortion clinics in other states in evaluating the burdens
placed on Kentucky women’s access to such facilities. Kentucky simply cannot foist upon sister
states its obligation to provide constitutional protections to its own citizens. Thus, the Court
concludes the challenged laws will effectively eliminate the availability of safe abortions to
women in Kentucky.
iii.

The Burdens Imposed by KRS 216B.0435 and 902 KAR
20:360 Section 10 Vastly Outweigh Their Benefits

As the Supreme Court held in Whole Woman’s Health, courts must “consider the burdens
a law imposes on abortion access together with the benefits those laws confer.” Whole Woman’s
Health, 136 S. Ct. at 2309 (citing Casey, 505 U.S. at 887-98). “[A] state may impose restrictions
on the woman’s access to an abortion . . . that serve some [] valid state interest; however, a state
may not erect procedural hurdles in the path of a woman seeking an abortion simply to make it
more difficult for her to obtain an abortion.” Memphis Planned Parenthood, Inc. v. Sundquist,
175 F.3d 456, 461 (6th Cir. 1999).
The Court has carefully reviewed the evidence presented in this case and concludes that
the record is devoid of any credible proof that the challenged regulations have any tangible
benefit to women’s health. On the other hand, the regulations effectively eliminate women’s
rights to abortions in the state. Therefore, the challenged regulations are unconstitutional. Even
if the challenged regulations furthered women’s health to a minimal degree, the burdens would
still outweigh any such feeble benefit and constitute an undue burden to women’s access to
abortions in Kentucky.
Defendants point to Women’s Medical Professional Corp. v. Baird as validation of the
challenged restrictions. In Baird, the only abortion facility in Dayton, Ohio, was unable to

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obtain a written transfer agreement with a local hospital, which was required by Ohio law. See
Baird, 438 F.3d at 597. After the clinic’s application for a waiver of that requirement was
denied, the clinic filed suit against the Director of the Ohio Department of Public Health
(“ODH”) alleging, inter alia, that the regulation constituted an undue burden on women’s rights
to abortions as applied to that facility. See id. The trial court granted a permanent injunction
prohibiting the enforcement of the regulation against the clinic, which the ODH appealed. See
id.
Applying Casey, the Sixth Circuit considered “whether the closing of an abortion clinic,
requiring its approximately 3,000 patients per year to travel to another clinic for abortion
services, constitutes an undue burden on a woman’s right to choose to have an abortion.” Id. at
604. The court concluded that the closure of the Dayton clinic did not constitute a substantial
obstacle to women seeking abortions because they could travel to abortion clinics in other Ohio
cities—e.g., Cincinnati, Columbus, Cleveland, and Akron. See id. at 605. “Thus, potential
patients of the Dayton clinic could still obtain an abortion in Ohio . . . .” Id. (emphasis added).
While acknowledging that women would have to travel greater distances, the court concluded
that that fact alone did not constitute an undue burden.28 See id. at 605-06.
By contrast, EMW’s closure would eliminate entirely the availability of legal abortions in
Kentucky because there would be no remaining abortion facilities within the Commonwealth.
Likewise, the inability of both EMW and Planned Parenthood to obtain satisfactory transfer
agreements and the lack of any history of the granting of waivers to those requirements
distinguish this case from Baird. Unlike in Baird, the closure of EMW would result in women

28

Baird is also distinguishable because the Sixth Circuit concluded that the challenged law was
facially neutral because it applied to all ambulatory surgical centers and not just abortion clinics.
See id. at 607. The challenged Kentucky laws at issue expressly only apply to abortion facilities.
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having to travel to other states to exercise their constitutional right to access abortion services.
As a result, the burdens in this case far outweigh any benefits of the challenged regulations.
Besides the significant factual distinctions between Baird and the case sub judice, this Court
must consider Baird’s holding in light of the Supreme Court’s decision in Whole Woman’s
Health. While Whole Woman’s Health involved a challenge to the constitutionality of admitting
privileges instead of transfer and transport agreements, the only significant distinction between
Whole Woman’s Health and the case at bar is that here Kentucky’s regulation would eliminate,
not just reduce, the availability of abortion services within its borders.
After considering the burden and benefit of the challenged Kentucky regulations, this
Court is compelled to reach the same conclusion as the Supreme Court did in Whole Woman’s
Health: the challenged regulations impose substantial obstacles to abortion access and result in
no benefit. Therefore, the challenged Kentucky statute and regulation are unconstitutional.29
2.

Facial Challenge

While the evidence establishes that the challenged laws are unconstitutional as applied to
EMW Plaintiffs and Planned Parenthood, the broader question of whether the statute and
regulation are facially invalid remains. In a facial challenge, the challenging party is asserting
that “no application of the statute could be constitutional . . . .” Sabri v. United States, 541 U.S.
600, 609 (2004); see also Citizens United v. FEC, 558 U.S. 310, 331 (2010) (“[T]he distinction
between facial and as-applied challenges is . . . both instructive and necessary, for it goes to the
breadth of the remedy employed by the Court . . . .” (citation omitted)).

29

Based on the Court’s conclusions that the Kentucky laws violated EMW Plaintiffs and Planned
Parenthood’s substantive due process rights, it is unnecessary to rule on whether those laws
violated the Fourteenth Amendment’s Equal Protection Clause or constitute an unlawful
delegation.
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Facial challenges impose “a heavy burden” upon the parties maintaining the suit. See
Gonzales, 550 U.S. at 167 (citation omitted). The U.S. Supreme Court has cautioned that where
possible, courts should fashion injunctions narrowly, tailored to the facts of the case, “to limit the
solution to the problem . . . .” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328
(2006).

Three interrelated principles should inform this process.

See id. at 329 (citation

omitted). First, a court should generally strive to nullify as little of a legislature’s work as
possible. See id. Second, a court should refrain from rewriting the unconstitutional law “to
conform it to constitutional requirements . . . .” Id. (quoting Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 397 (1988)). And “[t]hird, the touchstone for any decision about remedy is
legislative intent. . . . [T]he Court must ask: [w]ould the legislature have preferred what is left
of its statute to no statute at all?” Id.
In Ayotte v. Planned Parenthood of Northern New England, the Supreme Court
considered a facial challenge to New Hampshire’s parental notification law. See Ayotte, 546
U.S. at 323. The law prohibited physicians from “performing an abortion on a pregnant minor
(or a woman for whom a guardian or conservator has been appointed) until 48 hours after written
notice of the pending abortion is delivered to her parent or guardian.” Id. at 323-24. The law,
however, did not contain a provision allowing for an emergency abortion where, in the doctor’s
medical judgment, a woman’s health was in danger. See id. at 324-25.
The question before the U.S. Supreme Court was one of scope.

New Hampshire

conceded that application of the law to minors in emergency situations would run afoul of the
Constitution. See id. at 328. At the same time, the state argued that because the number of
minors who might be affected by the law’s failure to provide for a medical emergency exception
represented such a small percentage of cases, and because the law could be applied

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constitutionally in the majority of instances, both the trial court and Court of Appeals went too
far by invalidating the entirety of the law on its face. See id. at 331.
The Supreme Court concluded that invalidation of the entire law was too blunt a remedy.
See id. The Court noted, however, that such facial invalidation was understandable given that it
had previously invalidated the entirety of Nebraska’s partial birth abortion ban because it too
lacked a health exception. See id. at 330-31 (citing Stenberg v. Carhart, 530 U.S. 914, 930
(2000)). The Ayotte court distinguished Stenberg by observing that the parties had not advocated
for “relief more finely drawn.” Ayotte, 546 U.S. at 331; see also Northland Family Planning
Clinic, Inc. v. Cox, 487 F.3d 323, 333-35 (6th Cir. 2007) (discussing the differences in the
holdings in Ayotte and Stenberg).
Turning to the application of the factors set out in Ayotte to the present case, this Court
first notes that the statute’s scope is narrow, concerning only the requirement that abortion
facilities have transfer and transport agreements. See KRS 216B.0435. While 902 KAR 20:360
in its various iterations deals with multiple issues relating to abortion facilities, the challenged
portion—Section 10—directly relates to the specific requirement for transfer and transport
agreements in implementing KRS 216B.0435. Thus, because this Court has already found that
these agreements impose a substantial burden on a woman’s right to seek an abortion while
offering no medical benefit, there can be no excision of unconstitutional provisions as
encouraged by the Supreme Court. See Ayotte, 546 U.S. at 329.
Second, the Court cannot rewrite these laws to make them constitutional. The evidence
establishes how enforcement of the statute and the challenged portion of the administrative
regulation will result in a substantial burden on women seeking abortions in Kentucky. This
Court will not act as a legislative body and attempt to refashion the law so that it would not

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create that burden.

See id.

Analysis of this factor therefore weighs in favor of facial

invalidation.
As to the third Ayotte factor, the Chairman of the Kentucky House Judiciary Committee
went on record to state that he did not believe the transfer and transport requirements would
function as impediments to licensure if the statute were enacted. (Defs.’ Trial Ex. DX25C,
40:07-44:33). Given that the current enforcement of the statute and administrative regulation has
resulted in an impediment to licensure, the Court concludes that the Kentucky General Assembly
that enacted KRS 216B.0435 would have preferred no statute at all. This factor therefore weighs
in favor of facial invalidation.
Further, like the Ayotte court’s distinction of Stenberg, the parties in this action have not
requested a more finely drawn remedy. See Ayotte, 546 U.S. at 330-31. Rather, both sides have
sought to uphold or strike down the statute and implementing regulation in toto. The Court
concludes this too weighs in favor of facial invalidation.
Finally, while the statute existed for years with no impact on licensure, CHFS’s
subsequent actions reveal the law’s constitutional infirmity. This is analogous to the issue in
Whole Woman’s Health, where a previous court had upheld the facial constitutionality of the
Texas law. See Whole Woman’s Health, 136 S. Ct. at 2300-01 (discussing Planned Parenthood
of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014)). The Supreme
Court addressed whether the prior Fifth Circuit ruling constituted res judicata with respect to the
plaintiffs’ facial challenge. See id. at 2304-09. The majority concluded that the introduction of
new facts resulting from a statute’s enforcement permits a subsequent court to facially invalidate

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a statute without offending principles of res judicata.30 See id. at 2306 (“The post[-]enforcement
consequences of H.B. 2 were unknowable before it went into effect.”). Guided by this reasoning,
this Court concludes that the unconstitutional effect of the enforcement of KRS 216B.0435 was
likewise unknowable until the recent actions by CHFS leading to the present case. This too
weighs in favor of upholding the facial challenge to KRS 216B.0435.
Thus, the analysis in this instance compels a conclusion that KRS 216B.0435 is
unconstitutional on its face. Further, if KRS 216B.0435 is unconstitutional, 902 KAR 20:360
Section 10 is correspondingly facially unconstitutional.

Accordingly, the state must be

permanently enjoined from enforcing any portion of KRS 216B.0435 and 902 KAR 20:360
Section 10.
V.

ORDER

Based on the findings of fact and conclusions of law set forth above, IT IS HEREBY
ORDERED as follows:
1.

The Court grants judgment in favor of EMW Plaintiffs on Count I of Plaintiffs’

Verified Complaint, and Intervenor-Plaintiff on Counts I and II of the Intervenor-Plaintiff’s
Complaint. KRS 216B.0435 and the transfer and transport agreement requirements in 902 KAR
20:360 Section 10 violate EMW Plaintiffs’ and Intervenor-Plaintiff’s substantive due process
rights under the Fourteenth Amendment of U.S. Constitution, both facially and as applied, which
render those laws void and unenforceable.
2.

Because the Court has determined that KRS 216B.0435 and the transfer and

transport agreement requirements in 902 KAR 20:360 Section 10 are unconstitutional, the Court

30

Facial invalidation was a particularly broad remedy in Whole Woman’s Health because, unlike
here, the Texas bill contained a severability clause and numerous other seemingly innocuous
requirements that were enjoined as well. See id. at 2353 (Alito, J., dissenting).
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DISMISSES AS MOOT the claims asserted in Count III of Plaintiffs’ Verified Complaint and
Count IV of the Intervenor-Plaintiff’s Complaint.
3.

Counts II and IV of Plaintiffs’ Verified Complaint, and Counts III, V, and VI of

the Intervenor-Plaintiff’s Complaint are waived and are therefore DISMISSED WITH
PREJUDICE.

Greg N. Stivers, Judge
United States District Court
September 28, 2018

cc:

counsel of record

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