A divided panel on the United States Court of Appeals for the Sixth Circuit upheld Friday a requirement that abortion clinics in the state of Kentucky must obtain a transfer agreement with local hospitals in order to continue performing abortions in the state. The court concluded that the law was rationally related to a legitimate government interest and did not impose an undue burden on a women’s right to obtain an abortion.
According to the majority opinion, for twenty years, Kentucky has required abortion clinics to have a transfer agreement with a hospital. However, in September 2017, Kentucky created stricter guidelines for the transfer agreements, such as a requirement that the hospital with the transfer agreement either be in the same county or within a twenty-minute drive of the abortion clinic. The new regulation also allows abortion clinics to apply for a waiver every 90 days if they try, but are unable to obtain, a transfer agreement. The waiver, however, is discretionary.
The lower district court had concluded “that the scant medical benefits from transfer and transport agreements are far outweighed by the burden” and found the law unconstitutional. However, the Sixth Circuit disagreed with the district court’s decision to weigh the health benefits from the law against the burdens the law imposed. Previously, the Supreme Court has agreed that Courts should consider the burdens of an abortion law imposed on a woman against the health benefits the law confers. In June Medical Services v. Gee, the Court, in a 5-4 decision, struck down a Lousiana law requiring admitting privileges for abortion physicians. However, the crucial fifth vote to strike down the law was provided by Chief Justice Roberts, who ruled in the majority’s favor but rejected the benefits-burdens test. Since he provided the consequential fifth vote, the Sixth Circuit decided his opinion controlled.
Applying the Chief Justice’s concurring opinion in June Medical, the Sixth Circuit concluded that the hospital transfer agreement was rationally related to a legitimate government interest. The court also concluded that because of the 90-day waiver exemption, which could be applied for repeatedly, abortion clinics were not in danger of being shut down. Therefore the law did not impose a substantial burden on a woman’s right to obtain an abortion.
In dissent, Judge Clay concluded that the Chief Justice’s rejection of the Whole Woman’s Health balancing test was dicta and that the court was required to apply that test. Under that test, Judge Clay agreed with the district court that the burdens of the law to a woman’s access to abortion were greater than the medical benefits they conferred.
