Former Kentucky abortion providers move to dismiss their lawsuit challenging state’s ban

The parties who sued the state of Kentucky last year over a near-total abortion ban have asked a judge to dismiss their lawsuit.

Tuesday’s motion to dismiss, which a judge has to grant, is the latest in a year-long legal battle between the state’s only two remaining outpatient abortion providers, Planned Parenthood and EMW Women’s Surgical Center, and Republican Attorney General Daniel Cameron, who has long fought to defend laws restricting abortion in the commonwealth.

“We moved to dismiss this case because earlier this year, the Kentucky Supreme Court issued an extraordinary ruling that took away health care providers’ ability to defend the rights of their patients, upending decades of precedent,” both providers said in a statement. “Bringing cases on behalf of patients has been standard practice in Kentucky and across the country for good reason — numerous obstacles stand in the way of patients coming forward to participate in litigation.”

Planned Parenthood and EMW challenged the constitutionality of Kentucky’s laws banning abortion last June. The trigger law criminalizes abortion except to save the life of a pregnant person, and the six-week ban outlaws abortion after six weeks of pregnancy. The pair of laws became immediately enforceable after the U.S. Supreme Court overturned Roe v. Wade on June 24, ending half a century of federal abortion protections.

EMW and Planned Parenthood argued both laws infringe on a pregnant woman’s right to privacy and bodily autonomy, both of which are protected by the state constitution, and they petitioned a judge to temporarily block both from being enforced. Jefferson Circuit Judge Mitch Perry granted that request last July by way of a temporary injunction, and Cameron promptly challenged his decision. After an initial denial from the Kentucky Court of Appeals and the state Supreme Court, the appeals court granted Cameron’s second request on August 1.

EMW and Planned Parenthood appealed to the Kentucky Supreme Court, which held oral arguments for the case in November. The question before justices was whether there existed reason to reinstate a lower court’s injunction and block both laws restricting abortion from being enforced.

In their majority opinion, most justices decided that no, there wasn’t adequate reason to block both laws from being enforced, because neither provider had appropriate constitutional standing to challenge the six-week ban, specifically, on behalf of impacted patients. Both plaintiffs did have first-party standing to challenge the trigger law, because their clinics were directly impacted by having to cease providing abortions. As for the six-week ban, to claim it violated their patients’ constitutional rights to privacy and self-determination is too broad, the court found.

The larger question — does the Kentucky Constitution protect an individual’s right to abortion? — still hasn’t been answered. The high court highlighted this in their decision: “To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion,” they wrote. “Nothing in this opinion shall be construed to prevent an appropriate party from filing a suit at a later date.”

That opinion kicked the case back down to Judge Perry’s court, where it has been for the last four months. Abortion has been illegal and criminalized in Kentucky for a year. Women have been forced to drive to other states not only for elective abortions, but for terminations and early inductions for non-viable pregnancies — treatment considered the standard of care for obstetrical and gynecological medicine.

While Planned Parenthood has continued providing a continuum of reproductive health care, EMW was forced to close its doors after that February decision. In late May, EMW listed its building for sale. On May 31, Cameron filed a motion asking for the dismissal of the lawsuit.

Not only did the high court decide that the constitutional threshold for standing wasn’t reached, Cameron wrote in his filing, but the first-party standing the plaintiffs did have to challenge the trigger law no longer applied to EMW, since it’s no longer open and operating. Even if the trigger law were suspended, it “will have no practical legal effect,” on EMW, Cameron wrote. Any continued legal claims about harm caused by the laws, he said, are “moot.”

“Because their claims are moot, they lack the requisite redressability factor necessary for constitutional standing. And absent constitutional standing, the claims of EMW . . . must be dismissed,” Cameron argued.

The deadline to produce a plaintiff who is currently pregnant and in need of a pregnancy termination made inaccessible as a result of one or both laws was Tuesday, June 20, a spokesperson for Planned Parenthood said. Lacking that plaintiff, EMW and Planned Parenthood filed their motion to dismiss on Tuesday.

“I am fully optimistic we will find somebody and we will file a (new) case in court,” said Tamarra Wieder, state director of Planned Parenthood Alliance Advocates, “but unfortunately, we have to file this dismissal because of this deadline.”

Kentucky Right to Life Executive Director Addia Wuchner celebrated the motion to dismiss on Tuesday, saying, “Almost one year to the day after we celebrated the historic Dobbs decision that solved one of our nation’s most grievous wrongs, Kentucky Right to Life is rejoicing that even pro-abortion activists recognize the validity of our pro-life laws.”

This lawsuit was one of two challenging the constitutionality of Kentucky’s abortion laws. The second, filed by three Jewish mothers in Louisville, argues the laws give preference to Christian beliefs and diminishes the religious freedoms and rights of Jews, who generally don’t believe life begins at conception.