Chief Justice John Roberts’ Abortion Time Bomb Goes Off in Kentucky

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Commentary What the Crap?!

Chief Justice John Roberts’ Abortion Time Bomb Goes Off in Kentucky

Imani Gandy

Less than four months after helping keep Louisiana abortion clinics open, John Roberts could be the reason clinics in Kentucky are forced to close.

The time for celebrating the Supreme Court’s ruling in June Medical Services v. Russo is over, and you have embattled Kentucky Attorney General Daniel Cameron to thank for it.

In late June, when the Supreme Court struck down Act 620, Louisiana’s law forcing abortion providers to get admitting privileges at a local hospital, abortion rights advocates celebrated the win. It was a victory for abortion rights in Louisiana, since access wouldn’t be further decimated. And it was a victory for the providers who had tried—and failed—to get admitting privileges at hospitals that were either outright hostile to abortion or saw no point in granting privileges to doctors who rarely admit patients with complications. (That’s because abortion is wildly safe!)

But advocates knew that the celebration would be short-lived. Yes, John Roberts had voted with the liberals on the Court and, in doing so, had saved Louisiana’s remaining abortion clinics. But he did so with a wink and a nod to anti-choice advocates.

Well, the other shoe has dropped.

It’s barely four months later and Kentucky Attorney General Daniel Cameron, along with a couple of Trump judges from the Sixth Circuit Court of Appeals, wants you to know that laws almost identical to the ones the Supreme Court just struck down in Louisiana are still on the table.

Let me explain how.

June Medical Services was a case about a Louisiana TRAP law. Generally, TRAP laws—that stands for targeted regulation of abortion providers—are designed to shut down clinics. In June Medical Services, the TRAP law required abortion providers in Louisiana to maintain admitting privileges at a local hospital. That TRAP law was modeled on an identical law in Texas, and lawmakers in both states gleefully—and publicly—admitted that their clinic shutdown laws were meant to do just that—shut down clinics.

But what if there was a TRAP law that wasn’t a clinic shutdown law? What if instead of shutting down clinics, the law kept them in a perpetual state of licensing limbo?

Enter Kentucky, which was able to sneak its clinic shutdown law past a three-judge panel of the Sixth Circuit Court of Appeals, thanks to an argument that Cameron crafted after he intervened (legalese for “pushed his way into”) the case. The two judges who sided with Cameron are, unsurprisingly, Trump judges.

Cameron—who has somehow managed to avoid a national scandal after reportedly lying about the investigation into Breonna Taylor’s murder—asked the court if he could intervene because, although the state legislature is controlled by Republicans, Kentucky’s governor, Andy Beshear, is a Democrat and has demonstrated he’s not going to waste Kentucky taxpayer money defending bullshit abortion restrictions.

Cameron has no such reservations.

Kentucky’s law requiring abortion clinics to have a transfer agreement in order to maintain their license has a loophole that allows officials in the state to slowly lower the sword of Damocles over clinics’ heads without ever truly dropping it.

In documents filed with the Sixth Circuit, Cameron argued that Kentucky’s transfer agreement law was different than the laws in Louisiana and Texas. It’s a cynical, and quite frankly, ridiculous, interpretation of a law that amounts to little more than harassment of Kentucky abortion providers.

Under Kentucky law, abortion providers must have a transfer agreement with a local hospital in the same county or within a 20-minute drive of the clinic. (A transfer agreement is for all intents and purposes the same as an admitting privileges agreement. It means a clinic has an arrangement with a hospital to transfer patients suffering complications from abortion to a specific hospital—even though very few patients suffer abortion complications, and paramedics will take the ones who do to whatever hospital is closest.)

“But wait! I thought the Supreme Court has already decided that admitting privileges laws serve no medical benefit?” you may be asking.

You’re right. In 2016’s Whole Woman’s Health v. Hellerstedt, Stephen Breyer, writing for the majority of the Court, said that admitting privileges laws are nonsense. (The technical term for nonsense in this context is an “undue burden” on the right to an abortion under Planned Parenthood v. Casey, but nonsense is what it is.)

Breyer took a look at the benefits that Texas claimed the law would have for pregnant people and weighted them against the burdens the law would impose. (That’s what the undue burden test in Planned Parenthood v. Casey requires.) After that calculus, Breyer determined that the law was an undue burden. After all, it would have closed most clinics in the state.

In June Medical Services, Breyer deployed that same logic. The law in Louisiana, like in Texas, would have shut down nearly every clinic in Louisiana.

But in his concurring opinion in June Medical Services, Roberts donned his monocle and top hat and huffed “But what did the Casey Court really say?” before explaining that the undue burden analysis in Casey doesn’t require the weighing of benefits and burdens that the majority in Whole Woman’s Health said was necessary. In Roberts’ view, Casey asks one question: “Is this law a substantial obstacle?”

He was content to answer in the affirmative when it came to Louisiana’s law because it was a clinic shutdown law. But what if a state passed an admitting privileges law that didn’t shut down clinics? That just made it an absurd pain in the ass for abortion clinics to stay in business?

That is what’s happening in Kentucky. Kentucky’s law requiring abortion clinics to have a transfer agreement in order to maintain their license has a loophole that allows officials in the state to slowly lower the sword of Damocles over clinics’ heads without ever truly dropping it; officials can extend a waiver to a clinic having difficulty securing a transfer agreement if the officials feel like it. It’s at their discretion. The waiver permits the clinic to continue operating for 90 days.

And considering that the clinics in Kentucky haven’t had much success in obtaining these agreements, the law essentially forces these clinics to apply for a waiver of the transfer agreement requirement every 90 days while unceasingly trying to convince a hospital to enter into a transfer agreement. Because if officials in Kentucky get the sense that clinics just aren’t trying hard enough, then they can refuse to extend the waiver.

It’s a bonkers system.

But that’s the abortion landscape for the foreseeable future, thanks to the giant Casey time bomb John Roberts left ticking in June Medical Services v. Russo. If, as Roberts believes, the only relevant question is whether a law is a substantial obstacle to abortion, then as long as a law leaves the possibility of a clinic remaining open—by offering discretionary waivers from it’s requirement—then it may not be an undue burden. It doesn’t matter if that clinic has the Sisyphean task of spending countless hours trying to comply with laws that it will likely never be able to comply with.

Roberts has signaled loud and clear that he is OK with this system. He has also signaled that he is eager to take another long hard look at Planned Parenthood v. Casey, if only someone—anyone—would tee up the right case.