Spring and Summer of the Courts - Three ProLife Cases in Three Courts

UPDATE | 6-20-23

The EMW and Planned Parenthood case to challenge Kentucky's Trigger Law has been dismissed without prejudice.

UPDATE | 5-24-23

The Sixth Circuit Court of Appeals has issued an opinion remanding the appeal for HB3 to the US Western District Court in Kentucky, recommending that the District Court vacate its injunction orders.

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From the Desk of Addia Wuchner, RN, Executive Director KRTL & The RTL Education Foundation of Kentucky

Today is day 280 since August 1, 2022— the last day abortion facilities in Kentucky were open. In fact, it is nine months, seven days past August 1, 2022! June 24, 2022, the day Roe v. Wade was oveturned, was 317 days ago.

Think about it ProLife Friends, and join us as we thank Heaven… Mothers scheduled for abortions on August 2, 2022 – by now those babies would be born and taken their first breath.

Of course, we know woman may elect to travel out of state to have an abortion, but how many babies know life? How many precious lives have been saved since August 2, 2022?

But Kentucky Right to Life, the Attorney General of Kentucky and our KRTL legal team are still in the Courts defending Kentucky laws and defending LIFE.

Following is an update on the three ProLife matters pending in the Courts.

1. HB 3 - United States Sixth Circuit Court of Appeals, Cincinnati
2. Kentucky Trigger Law - Louisville Circuit Court, Division 3
3. Buffer Zone - U.S. Western District Court, Louisville

1 First date in court - June 15, 2023, 9 AM, Cincinnati Court of Appeals

HB3, the ‘omnibus pro-life bill’ Humanity in Healthcare Act that became law in 2022, will be further litigated. Aspects of its requirements have been challenged by plaintiffs EMW and Planned Parenthood. Please watch for more news about this upcoming hearing. Pray for pro-life law to be upheld and protected. For background on this litigation, see this article list.

2 Next date in court - June 28, 2023, Time TBA, Judge Perry Louisville Circuit Court

We’ll call this one the “KSC (Kentucky Supreme Court) case.”

Briefly, the case was on appeal from Judge Mitch Perry, to ask the KSC to overrule the KY Appeals Court decision to ‘stay’ his order to reopen the abortion clinics. A sizable list of articles about this litigation is on this Forum for anyone who wants to follow the timeline.

A Status hearing to follow up on the February 16 (2023) KSC 150-page ruling was held in Judge Perry’s Jefferson Circuit Court on Monday, April 24th. The KSC ruling stated that the abortion clinics did not have standing to bring their case:

After thorough review, we hold that the abortion providers lack third-party standing to challenge the statutes on behalf of their patients. Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf. We affirm the Court of Appeals’ holding that the circuit court abused its discretion by granting the abortion providers’ motion for a temporary injunction and remand to the circuit court for further proceedings consistent with this opinion.

During the Status hearing, the plaintiffs reported that they had not been able to find a woman willing to represent their lawsuit, as one who would have standing before the KSC.

The Federal standard for standing that had been adopted by the KSC in 2018, states: “for a party to sue in Kentucky, the initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, (3) redressability. In other words, [a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”

The defendant (appellant) for this appeal, was Daniel Cameron in his capacity as Attorney General. The appellees were the EMW Clinic, their owner Ernest Marshall, MD, on behalf of his patients, and Planned Parenthood Great Northwest, on behalf of itself, its staff and its patients.

The ‘injury’ was the closing of the abortion clinics as legislated by Ky’s ‘trigger law’— the Human Life Protection Act to close the clinics if/when Roe was overturned— enacted in 2019 and enforced. Read here.

The KSC ruled that the appellees could not plead on behalf of their patients because the clinics were not, by legal definition, injured.

The appellant attorney arguing for Cameron, Christopher Thacker, objected to adding a plaintiff —a potential patient of the clinics. He insisted the only issue before the Court was to decide whether to uphold the ‘trigger law.’ Judge Perry agreed with Mr. Thacker and the AG's position.

Judge Perry extended the proceedings, setting a new Status hearing on Wednesday, June 28, to establish the outcome.

It is important for all Right to Lifers to pray about his court case.

In the proceedings before the Kentucky Supreme Court, only one justice, Robert Conley, concurred with Justice Lambert’s opinion which is the ‘holding’ for the case.

The Chief Justice, Laurance VanMeter, concurred in result only. This means that though he agreed with the final result of the holding, he did not agree with the conclusions used to reach it or perhaps with some points of the decision.

Justice Angela Bisig, new on the KSC this year, concurred in part and dissented in part by separate opinion in which Justice Michelle Keller joined. Keller concurred in part and dissented in part by separate opinion in which Bisig joined. (Two peas in a pod.)

Justice Christopher Nickell and new Justice, Kelly Thompson, concurred in part and dissented in part in separate opinions.

So, as we see, the upcoming June 28 hearing in the Circuit Court may take advantage of these dissents to pry open fresh litigation.

Pro-life Jefferson Countians may be rightly disappointed that Bisig, the 4th District KSC representative, is NOT pro-life.

3 Waiting on court date - Stalled - U.S. Western District Court, Louisville

The third matter still in the courts is the Louisville Buffer Zone case. Background on this is found here. The Cincinnati Court of Appeals ruled in favor of the pro-life plaintiffs, KRTL and Sisters for Life. We heard from many KRTL members and friends who appreciated our involvement in objecting to the Metro Louisville Council’s ordinance mandating a ‘buffer’ zone of 10 feet around the EMS to prevent sidewalk counseling.

Our fine attorney Chris Wiest is asking Judge Rebecca Jennings to permanently enjoin the ordinance so that the case will have an official end, upholding free speech. The EMW Clinic claims that it is now a moot issue since no sidewalk counseling is taking place due to the closure of the clinic.

Lights are on in the abortion clinics. Physical abortions are not being performed, but calls are fielded, and there is not yet a definitive end to abortion in Kentucky until the court cases are closed.

Please watch the KRLA Forum for news and comment.