599 F.Supp.3d 497
W.D. Ky.2022Background
- Plaintiff Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky operates the Louisville clinic and provides abortions up to 13 weeks, 6 days (once weekly).
- Kentucky enacted HB 3 (Humanity in Healthcare Act) with an emergency clause; the Legislature overrode the Governor’s veto and the law became effective April 13, 2022.
- HB 3 imposes new reporting, registration, certification, and informed-consent requirements and directs the Cabinet for Health and Family Services to create numerous new forms and a Kentucky Abortion-Inducing Drug Certification Program.
- The Cabinet had not created the required forms or promulgated implementing regulations when HB 3 took effect; the Attorney General conceded the forms/programs did not yet exist.
- Planned Parenthood sued and sought a temporary restraining order (TRO), arguing immediate enforcement makes compliance impossible and violates due process; the district court granted a TRO enjoining enforcement of HB 3 pending further proceedings, waived bond, and scheduled a preliminary‑injunction hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of HB 3 immediately despite missing Cabinet forms/regulations | HB 3 took effect immediately and cannot be complied with because the Cabinet has not issued required forms/programs | Statute should be read to require use/submission of agency forms only after the Cabinet creates/distributes them; reporting can be done "expediently" now | Court: Plain text makes the Act effective immediately; lack of forms makes compliance impossible and supports TRO against enforcement tied to uncreated forms/programs |
| Substantive due process / undue burden on pre‑viability abortion rights | Immediate effect + impossibility of compliance will force clinic to stop providing abortions, imposing a substantial obstacle to patients' rights | Enforcing HB 3 would not create a substantial obstacle; compliance alternatives exist | Court: Plaintiff has a strong likelihood of success on patients’ substantive‑due‑process (undue burden) claim because inability to comply imposes a substantial obstacle |
| Irreparable harm from enforcement absent injunction | Constitutional rights threatened; risk of felony prosecution, fines, and license revocation — irreparable injury | Enforcement furthers state interest in protecting unborn children; no irreparable harm claimed to be insufficient | Court: Irreparable harm is established (constitutional injury and realistic risk of severe penalties); supports TRO |
| Scope of relief — narrow administrative carve‑out vs. enjoining HB 3 broadly | Relief should prevent enforcement of those provisions that are impossible to comply with (reporting/registration tied to uncreated forms) | Relief should be narrow because only a handful of administrative provisions are implicated | Court: TRO temporarily enjoins enforcement of HB 3 in its entirety (for now) because the court lacks sufficient information to delineate which subsections are presently enforceable; will revisit at preliminary injunction hearing |
Key Cases Cited
- Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833 (reaffirmed right to pre‑viability abortion)
- June Medical Servs., L.L.C. v. Russo, 140 S. Ct. 2103 (reaffirmation of Casey principle)
- EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418 (6th Cir.) (test for pre‑viability regulation and undue burden analysis)
- Preterm‑Cleveland v. McCloud, 994 F.3d 512 (6th Cir.) (abortion right not absolute; undue‑burden framework)
- Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535 (6th Cir.) (standard for TRO/PI factors)
- Am. Civil Liberties Union of Ky. v. McCreary Cty., 354 F.3d 438 (6th Cir.) (constitutional violation supports finding of irreparable harm)
- Beshear v. Acree, 615 S.W.3d 780 (Ky.) (effect of emergency clause)
- Zuckerman v. Bevin, 565 S.W.3d 580 (Ky.) (deference to legislative judgment on emergency clause)