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Trump Judges Uphold Restrictive Requirements that District Court Found Would Leave State Without a Single Licensed Abortion Clinic: Confirmed Judges, Confirmed Fears

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Trump Judges Uphold Restrictive Requirements that District Court Found Would Leave State Without a Single Licensed Abortion Clinic: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judges Joan Larsen and Chad Readler reversed a district court and upheld restrictive Kentucky requirements that the district court found would leave the state without a single licensed abortion facility. The October 2020 case is EMW Women’s Surgical Center v. Friedlander.

Beginning in the late 1990s, Kentucky law required that abortion clinics have transfer agreements with a local hospital and transport agreements with an ambulance company in case a patient needed to be sent to a hospital, and submit the agreements to the state. For more than 15 years, this posed no problem, including for EMW Women’s Surgical Center (EMW), which had performed most abortions in the state since the 1980s. This was because the agreements “did not receive serious scrutiny” and the requirement was “merely an item on the checklist of licensure requirements.”

Beginning in 2016-17, however, the requirements became much stricter. Although EMW had renewed its license “without issue” in early 2016, it was told in March 2017 that the renewal was “in error” because its arrangements with a hospital and ambulance company, which had drawn no objection for almost twenty years, were now considered inadequate because the facilities were now considered too far away or the agreements did not comply with other technical requirements. EMW was unable to find a hospital that could enter into an agreement that complied with the “new and more rigorous” regime, so it filed suit against the state. Planned Parenthood, which sought to open an abortion clinic in 2016 but had similar problems, joined the suit.

After a three-day trial, the district court agreed that the state’s enforcement of the transfer and transport requirements would effectively mean that no abortion clinic could operate in Kentucky. Specifically, based on the Supreme Court’s 2016 decision in the Whole Women’s Health case concerning clinic restrictions, the judge ruled that the “scant” benefits from the requirement are “far outweighed by the burden” they impose on Kentucky women seeking abortions, and that they improperly place “a substantial obstacle in the path” of such women and constitute an “undue burden on abortion access.” The judge entered a permanent injunction against enforcement of the requirements, and the state appealed.

In a 2-1 decision written by Trump judge Joan Larsen and joined by Trump judge Chad Readler, the Sixth Circuit reversed. The majority claimed that the requirements would not necessarily leave the state without an abortion clinic because EMW or Planned Parenthood could seek and “still obtain a waiver” of the requirements. The majority further maintained that the Whole Women’s Health “balancing” test was effectively overruled as a result of Chief Justice Roberts’ concurring opinion in the more recent June Medical Services case, and that the proper test was whether the state’s law was “reasonably related” to a “legitimate purpose” and whether it placed a “substantial obstacle” or burden on a woman seeking an abortion. The majority concluded that the Kentucky requirements were reasonably related to the legitimate goal of ensuring women’s’ health, and that plaintiffs had not proven a substantial burden because the clinics could apply for and get “waivers of the provisions’ requirements every ninety days” under a procedure set up by the state in 2017, after the lawsuit was filed.

Judge Eric Clay strongly dissented. He began his 35-page dissent by explaining that the majority decision “openly disregards our standard of review and discards binding precedent,” and “condones the evisceration of the constitutional right to abortion access in Kentucky,” harming “millions” of individuals in a ruling that is “terribly and tragically wrong.”

More specifically, Clay went on, the majority improperly “refuses to apply” the Whole Women’s Health decision and “wrongly adopts” the approach in Chief Justice Roberts’ solo concurrence in June Medical Services, and thus “ignores” precedent “dictating” that lower courts should not find that the Court has “implicitly” overruled prior precedent, a principle that Chief Justice Roberts himself agreed with. In fact, Clay noted, the majority reached a result “directly opposing Chief Justice Roberts,” who agreed that the clinic restrictions in June Medical Services were unconstitutional.

Regardless of what precise standard is used, Clay wrote, the key issue was whether the Kentucky requirements imposed a “substantial burden” on women seeking abortions, and the majority was wrong in finding that the district court “clearly erroneously” concluded that the requirements “would effectively eliminate abortion access” in Kentucky. The majority maintained “without grounding in fact or reason,” Clay stated, that Kentucky abortion facilities could continue to operate if they “continually and indefinitely applied for ninety-day extensions” of the time to obtain the agreements, a conclusion that “disregards substantial evidence supporting the district court’s determination.”

In particular, Judge Clay pointed out that the district court had specifically found that even if EMW or Planned Parenthood could secure an initial extension or waiver, “the uncertainty of a discretionary waiver would make it exceedingly difficult for an abortion facility to survive” because of problems in hiring and retaining staff and obtaining financing “without knowing whether” it could “continue operating beyond ninety days.” Despite the “ample evidence presented by Plaintiffs and credited by the district court” to support that finding, Clay continued, the majority pointed to “no contrary evidence.” Instead, Clay went on, the majority violated the rule that trial court factual findings should be accepted on appeal unless “clearly erroneous,” and relied only on “a few weak and legally unprecedented rationalizations for rejecting” the finding. Most blatant of all, Clay noted, was the majority’s reliance on Justice Alito’s dissenting opinion in June Medical Services, in which Alito similarly tried to undermine factual findings by a district court about the ability of a doctor to obtain hospital admitting privileges, which was at issue in that case. This argument by the majority, Clay wrote, demonstrates its “blatant disregard” of the appellate court’s proper “role in reviewing the district court’s finding.”

Overall, Judge Clay concluded, the decision by Trump judges Larsen and Clay to reverse the district court and uphold the Kentucky requirement “flies in the face of both the law and the facts.” As a result of their ruling, not only will people in Kentucky find it almost impossible to obtain an abortion, but the improper standards they announced for evaluating abortion restrictions will also threaten people throughout the Sixth Circuit, including Ohio, Michigan, and Tennessee as well.


Chad Readler, Confirmed Judges Confirmed Fears, Joan Larsen, reproductive health care, Sixth Circuit Court of Appeals