Court: 6th Circuit Court (Published Opinions)
ARGUED: S. Chad Meredith, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants.
ARGUED: Easha Anand, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco,California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees Women’s Surgical Center, P.S.C. and Ernest Marshall, M.D.
ON BRIEF: S. Chad Meredith, M. Stephen Pitt, Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants.
ON BRIEF: Easha Anand, Karen G. Johnson-McKewan, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, Carrie Y. Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Michael P. Abate, James E. McGhee, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky, Lisa T. Simpson, Jennifer M. Keighley, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, Melanie L. Bostwick, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Robert L. Uriarte, ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo Park, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc.
ON BRIEF: Brigitte Amiri, Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Donald L. Cox, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville, Kentucky, Heather L. Gatnarek, ACLU OF KENTUCKY, Louisville, Kentucky, Amy D. Cubbage, ACKERSON & YANN, PLLC, Louisville, Kentucky, for Appellees Women’s Surgical Center, P.S.C. and Ernest Marshall, M.D. Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana, Heidi Parry Stern, OFFICE OF THE NEVADA ATTORNEY GENERAL, Carson City, Nevada, La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.
Judge(s): CLAY, LARSEN, and READLER, Circuit Judges
Court Appealed: Appeal from the United States District Court for the Western District of Kentucky at Louisville
LARSEN, Circuit Judge. Two decades ago, the Kentucky General Assembly enacted a law requiring abortion facilities to obtain transfer agreements with a local hospital and transport agreements with a local ambulance service. Ky. Rev. Stat. (KRS) § 216B.0435. Regulations promulgated in 2017 imposed stricter conditions on the agreements but also allowed successive, ninety-day waivers for facilities unable to comply with the law. 902 Ky. Admin. Regs. (KAR) 20:360 § 10. The plaintiffs in this case, who were, at the time, Kentucky’s only licensed abortion facility, its owner, and another facility seeking licensure, challenged the transfer- and transport-agreement requirements as imposing an undue burden on abortion access. The plaintiffs argued that it had become impossible for them to obtain the required agreements, and that the law’s enforcement would leave Kentucky without a licensed abortion facility, thereby eliminating abortion access in the Commonwealth. Agreeing with the plaintiffs, the district court held that Kentucky’s requirements were facially invalid and permanently enjoined them.
Kentucky appeals the permanent injunction, arguing, among other things, that the plaintiffs failed to show that the law would in fact leave the Commonwealth without a licensed facility, because a facility unable to obtain the required agreements could still obtain a waiver. Kentucky also appeals the district court’s order imposing monetary sanctions for failure to produce a designee for a properly noticed deposition. We conclude that the district court did not abuse its discretion by imposing monetary sanctions, so we AFFIRM in part. But because the district court erred in concluding that Kentucky would be left without an abortion facility, we REVERSE in part, VACATE the permanent injunction, and REMAND for further proceedings.