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Commonwealth of Virginia
Office of the Attorney General

Mark Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219


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Michael Kelly, Director of Communications
Phone: (804)786-5874 
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~ AG Herring and colleagues file amicus brief urging court to uphold ruling that protects Kentucky’s only licensed abortion clinic from closure ~

RICHMOND (April 4, 2019) – Today, Attorney General Mark R. Herring joined a coalition of 21 attorneys general in filing an amicus brief asking the U.S. Court of Appeals for the Sixth Circuit to affirm a lower court’s finding that a Kentucky law regulating abortion services is unconstitutional under the 14th Amendment of the U.S. Constitution. Attorney General Herring and his colleagues argue in the brief that the availability of abortion services in neighboring states does not exempt another state from the Constitution’s prohibition on unduly burdening a woman’s ability to access abortion services in her home state. Additionally, the brief urges the Court to ensure that regulations imposed on abortion services actually promote women’s health without creating substantial obstacles to the availability of these services. The implications of this case for the women of Kentucky are particularly severe, as the law at issue would effectively eliminate the only abortion provider in the state.


Attorney General Herring and his colleagues further argue in the brief that allowing a state—like Kentucky—to rely on neighboring states for abortion services harms neighboring states. Allowing this analysis could have unintended consequences on neighboring states whose demand for abortion services could increase.


“Every woman has the right to make her own choices about her reproductive health without her government getting in the way,” said Attorney General Herring. “Kentucky’s move would severely limit healthcare options by effectively eliminating the only abortion provider in the state, making it that much harder, and potentially more dangerous, for women to make these decisions. I will stand with my colleagues and fight to make sure that women across the country continue to have access to quality, safe healthcare services.”


Plaintiff-Appellee EMW Women’s Surgical Center (EMW) is Kentucky’s only licensed abortion facility. While EMW has provided safe abortions since the 1980s, in 2017, Kentucky’s Cabinet for Health and Family Services (Cabinet) notified EMW that its license to perform abortions had been renewed in error, citing alleged violations of Kentucky law. EMW filed suit in March 2017, with Planned Parenthood later intervening in the case. Planned Parenthood had been trying unsuccessfully to obtain an abortion license until the Cabinet abruptly informed the organization that its transfer and transport agreements with a hospital and ambulance company were allegedly “deficient.”


The District Court for the Western District of Kentucky ultimately agreed with EMW and Planned Parenthood, finding that the Kentucky law regarding transport and transfer agreement requirements imposed an undue burden on Kentucky women seeking to exercise their constitutional right to access abortion services. In response, the Cabinet appealed this decision last month in the federal courts, challenging the District Court’s findings. Today’s brief was filed in support of Planned Parenthood and EMW’s legal challenge.


Attorney General Herring has been a strong advocate for women’s healthcare and reproductive rights in Virginia. He has stood against attacks on women’s reproductive freedom, and has fought in court to defend women’s access to comprehensive healthcare services including abortion and birth control. He issued an official advisory opinion that helped protect women’s health clinics from expensive and medically unnecessary retrofits that would have closed many Virginia clinics that offer abortion services. Attorney General Herring successfully fought alongside his colleagues in the Whole Women’s Health case to strike down Texas’s onerous, medically unnecessary regulations and he has fought for women’s reproductive justice around the country, working with colleagues to oppose medically unnecessary restrictions on abortion in Ohio and Alabama. Additionally, he has continuously fought against the Trump Administration’s attacks on women’s access to the full range of reproductive health care services and contraception options.


Joining Attorney General Herring on this amicus brief are the attorneys general of California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, and Washington.


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