960 F.3d 785
6th Cir.2020Background
- Kentucky H.B. 454 (2018) criminalized performing abortions that cause “bodily dismemberment” of a living fetus at ≥11 weeks post‑fertilization (≈13 weeks LMP) unless a medical emergency exists.
- The statute, while not naming D&E, effectively forbids standard second‑trimester dilation-and‑evacuation (D&E) abortions unless fetal demise is induced before removal.
- Plaintiffs (EMW Women’s Surgical Center and two physicians), Kentucky’s sole outpatient abortion clinic/providers, sued and obtained a permanent injunction in the district court; the Commonwealth appealed.
- The Secretary defended the law by identifying three fetal‑demise workarounds: digoxin injection, potassium chloride injection, and in‑utero umbilical‑cord transection.
- The district court found each workaround infeasible, risky, or technically unavailable for many patients, concluded H.B. 454 imposes an undue burden on pre‑viability abortion, and enjoined enforcement; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether H.B. 454 imposes an undue burden on the pre‑viability right to choose | H.B. 454 effectively bans the common second‑trimester D&E and thus places a substantial obstacle to abortion before viability | The law is constitutional because it allows D&E after inducing fetal demise by alternative procedures, which are reasonable alternatives | Court held H.B. 454 unduly burdens pre‑viability abortion because the added fetal‑demise procedures impose significant, unjustified burdens that outweigh benefits |
| Whether digoxin injection is a feasible, safe workaround | Digoxin is unreliable, insufficiently studied <18 weeks, may fail 5–20%, can be contraindicated, and adds health/logistical/emotional burdens | Secretary argued digoxin is clinically used and practicable | Court held digoxin is not a reliable or safe universal workaround and imposes meaningful risks and burdens |
| Whether potassium chloride or umbilical‑cord transection are feasible workarounds | Both methods are medically risky, technically difficult or unavailable for many patients, and require specialized training/providers | Secretary argued providers could be trained or hired and that the procedures are effective alternatives | Court held both methods are frequently infeasible, pose substantial risks, and are not realistic universal alternatives |
| Proper remedial scope (facial v. as‑applied relief) | Facial invalidation is appropriate because a "large fraction" (in fact 100% of those for whom the statute is relevant) would be burdened | Secretary urged as‑applied challenges and argued the relevant denominator should be broader or that travel/outsourcing cures burden | Court affirmed facial relief: H.B. 454 unduly burdens all affected and cannot be narrowed by the court to save statute |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (recognizing constitutional right to choose an abortion before viability)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (undue‑burden framework: states may not place substantial obstacles to pre‑viability abortions)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (courts must weigh burdens against claimed benefits; legislative medical findings get no uncritical deference)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (states may express respect for life but restrictions remain subject to undue‑burden analysis and cannot impose significant health risks)
- Stenberg v. Carhart, 530 U.S. 914 (2000) (a law that effectively prohibits D&E can be an unconstitutional burden)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (appellate courts must accept district court factual findings unless clearly erroneous)