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Trump Judge Tries to Uphold Kentucky Law that Bans Most Second Trimester Abortions: Confirmed Judges Confirmed Fears

John K Bush
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Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit Judge John Bush wrote a dissent that tried to reverse a district court and uphold a Kentucky law that bans most second trimester abortions, which are conducted using the dilation and evacuation (D&E) method. Bush also dissented from a later ruling that rejected a motion to intervene in and prolong the case. The June 2020 ruling on the merits was EMW Women’s Surgical Center v. Friedlander; the intervention ruling can be found at 2020 U.S. App. Lexis 19694 (June 24, 2020).

Starting in the fifteenth week of pregnancy, doctors must utilize the D&E method to perform an abortion, which is used in “95% of second-trimester abortions performed nationwide.” In 2018, Kentucky enacted a law that criminalizes D&E abortions unless risky procedures are performed to ensure fetal demise before the procedure begins. Kentucky’s only abortion clinic and two of its doctors immediately filed a lawsuit, on behalf of themselves and their patients, challenging the law on its face because it effectively bans D&E abortions and thus “imposes an undue burden on the right” to elect abortions.

A federal district court heard and received extensive evidence during a five-day trial, concluded that the law in fact “imposed an undue burden” on the right to elect an abortion, and permanently enjoined the law. The state appealed to the Sixth Circuit.

In a 2-1 decision written by Judge Eric Clay, the court of appeals affirmed. The majority opinion began by noting that ten other states had enacted laws like Kentucky’s, and that in “every challenge brought to date” to such laws, the courts have “enjoined” them, finding that they “indeed unduly burden” the right to abortion. The majority carefully reviewed the extensive record in the lower court and found that the state could not show any clearly erroneous factual findings by the district court, as precedent requires in order to overturn them.

In particular, the majority affirmed the rejection of the argument by the state that a D&E abortion could be permissible under the law if the patient agrees first to undergo another procedure to ensure fetal demise before the procedure begins. As the majority explained, such procedures are not alternatives to D&E abortions, but instead are “additional procedures” that “impose only additional medical risks” that a patient must undergo before a standard D&E procedure can be performed under Kentucky law. “In essence,” the majority concluded, the law “conditions an individual’s right to choose on her willingness to submit herself to an additional painful, risky, and invasive procedure.” The majority thus rejected the state’s argument.

Judge John Bush dissented. He argued primarily that the clinic and the doctors did not have standing to represent the interests of potential patients, none of whom were parties or testified at the trial. The majority rejected that claim, pointing out that even the state was no longer raising the standing issue, that the doctors and the clinic clearly had “standing to sue on their own behalf,” and that the courts have found standing to represent the interests of patients in such cases.

Bush further argued that the interests of the doctors and patients may conflict, because patients may prefer to undergo a fetal demise procedure. As the majority explained, however, the dissent’s supposed conflicts “do not exist.” Even assuming that Bush could appropriately find facts on this issue at the appellate level, the majority went on, the doctors and clinic were not arguing that patients should not be permitted to undergo a fetal demise procedure; instead, they were arguing that individuals “should not be compelled to undergo” one when they choose not to do so. Bush’s dissent “cannot create a conflict through bare assertion,” the majority concluded, and his arguments “are altogether without merit.”

Around a week after the court’s decision, Kentucky’s Attorney General moved to intervene as a defendant in the case and to file a petition for the whole court to rehear it, which the lead state official, the Acting Secretary of Kentucky’s Cabinet for Health and Family Services, had not done. The majority rejected the motion based on the standard four criteria used by the courts concerning such motions, emphasizing how late it was. As the majority explained, the motion “comes years” after the case was filed and after both the district court and court of appeals had decided it, and the Attorney General could not “identify any case” where the Sixth Circuit had permitted such late intervention. Allowing such belated intervention, the majority went on, would provide “every incentive” to possible intervenors to “sit out litigation until we issue a decision contrary to their preferences.”

Bush again dissented. He claimed that intervention was appropriate because, he asserted, the Acting Secretary would “no longer defend” the Kentucky law. Bush argued that the Attorney General wanted to present a third-party standing argument similar to one in the June Medical Services Supreme Court case, which could be issued “any day now” and could well contradict the majority’s ruling.

The majority again rejected Bush’s arguments. They pointed out that the Acting Secretary “remains a party” in the case, and there was “nothing to prevent him” from seeking Supreme Court review of its ruling. The majority noted that any Supreme Court decision on third party standing in June Medical Services  “will prevail” if it contradicted the court’s holding, but it was “skeptical” that the Court would “overturn decades of its precedent” on the issue. That prediction has turned out to be correct.

The Sixth Circuit majority thus overturned Kentucky’s restrictive abortion law in accordance with Supreme Court and other precedent. If it had been up to Bush, however, that unconstitutional law would have remained on the books and severely limited the right to choose.

UPDATE: On July 16, Bush again dissented, this time form an order rejecting the Attorney General’s motion to file a petition for rehearing by the full court. See 2020 US App. Lexis 2256. On August 6, a different three-judge panel including Trump judges Joan Larsen and Chad Readler granted the Attorney General’s motion to intervene on behalf of Kentucky. See 2020 US App Lexis 22298.