A federal appeals court has again upheld a state pro-life law based on a U.S. Supreme Court decision this year that was a defeat at the time for an effort to protect women who undergo abortions.
The Sixth Circuit Court of Appeals in Cincinnati ruled as constitutional Oct. 16 a 1998 Kentucky law that requires an abortion clinic to have transfer agreements with a hospital and an ambulance service. The split decision by a three-judge panel reversed a federal court opinion that struck down the state law, which attempted to protect the lives and health of women by mandating such written arrangements in case of complications from abortions.
The panel relied on a concurring opinion by Chief Justice John Roberts in the Supreme Court’s June ruling that struck down a Louisiana law that required hospital admitting privileges for doctors who perform abortions. Like the Sixth Circuit, the Eighth Circuit Court of Appeals also based an August decision upholding four pro-life laws in Arkansas on Roberts’ concurrence.
“Laws that ensure the health and safety of women and children, especially from the abortion industry, are not needless red tape,” said Elizabeth Graham, vice president of operations and head of life initiatives for the Southern Baptist Ethics & Religious Liberty Commission, in written comments. “Protecting life is a central responsibility of government. We are glad to see this ruling from the Sixth Circuit upholding this right and reasonable Kentucky law.”
State Attorney General Daniel Cameron, who defended the law, said the Sixth Circuit decision “keeps in place an important Kentucky law for protecting the health and safety of patients by finding [the abortion providers in the case] failed to prove that they could not comply with the statute and regulation.”
In the Supreme Court’s 5-4 decision on the Louisiana law in June, Roberts agreed with the four-justice liberal wing in the judgment but not in its reasoning. The chief justice said the proper analysis under the 1992 Planned Parenthood v. Casey opinion is “whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not whether benefits outweighed burdens,’” the Eighth Circuit panel said in August. The other four justices in the majority judgment endorsed the benefits-and-burdens standard the high court offered in the 2016 Whole Woman’s Health v. Hellerstedt ruling, which invalidated a Texas admitting privileges law.
Both the Sixth Circuit and Eighth Circuit found Roberts’ opinion was the controlling one in the cases before them. Their reliance on his concurrence gives hope to pro-life legislators that their efforts to safeguard women’s health will find a receptive audience at the high court, especially if Amy Coney Barrett, President Trump’s latest Supreme Court nominee, is confirmed by the Senate.
After the Eighth Circuit ruling, Katie Glenn, government affairs counsel at Americans United for Life, said Roberts’ opinion basically invalidated the Hellerstedt test and “opened the door for lots of health-and-safety regulations to stand up.”
The Casey test endorsed by Roberts is “much more favorable for lawmakers; it’s much more favorable for pro-lifers,” Glenn said, adding she hopes they can “get lawmakers to feel confident that they can pass good pro-life laws that will stand up in court.”
The Kentucky General Assembly’s 1998 measure to protect women who obtain abortions preceded a widespread effort by states to regulate abortion and abortion providers. Many states have enacted pro-life laws in the last decade.
In its 2-1 opinion, the Sixth Circuit panel said the Kentucky law is valid because it meets the requirements in Roberts’ concurring opinion: It is “‘reasonably related’ to a legitimate state interest,” and does not have the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Judge Joan Larsen, writing for the majority, said the EMW Women’s Surgical Center and Planned Parenthood of Indiana and Kentucky – the abortion providers who brought suit – “failed to make a clear showing that both of their abortion facilities would close if [the 1998 law and 2017 regulations] go into effect.”
The 2017 rules “imposed stricter conditions on the agreements but also allowed successive, ninety-day waivers for facilities unable to comply with the law,” Larsen wrote in the ruling, which vacated the lower court’s permanent injunction and returned the case to that court for further consideration in keeping with the appeals court opinion.
The 1992 Casey opinion – which found a law could not impose an “undue burden” on a woman’s right to abort her child – affirmed the 1973 Roe v. Wade decision legalizing abortion while allowing states to regulate aspects of the practice to protect the lives and health of women.
Provisions in the four Arkansas laws enacted in 2017 that were upheld by the Eighth Circuit are: (1) Prohibit some abortion procedures performed typically in the second trimester that involve the dismemberment of unborn children; (2) ban abortions based on the sex of the child; (3) strengthen reporting requirements for abortions performed on girls under the age of 17; and (4) bar research on aborted babies and require humane disposal of their remains.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)