In
EMW Women’s Surgical Center v. Friedlander, (6th Cir., June 2, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional a Kentucky statute that prohibits dilation and evacuation abortions after 13 weeks of pregnancy unless fetal demise occurs before removal of the fetus from the uterus. The majority, affirming the grant of a permanent injunction, said in part:
Altogether, H.B. 454 imposes substantial burdens on the right to choose. Because none of the fetal-demise procedures proposed by the Secretary provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E. In the balance against these burdens, we weigh the minimal benefits that H.B. 454 provides with respect to the Commonwealth’s asserted interests. These benefits are vastly outweighed by the burdens imposed by H.B. 454. Thus, H.B. 454 unduly burdens the right to choose, in violation of the Fourteenth Amendment.
Judge Bush dissented, arguing in part:
[T]here is a potential conflict of interest between Plaintiffs and their patients: for whatever reason—be it financial, litigation strategy, or otherwise—EMW’s physicians have refused to obtain the necessary training to perform fetal demise, even though uncontroverted studies presented at trial show that many, and perhaps a substantial majority, of women would choose fetal demise before undergoing a D&E procedure.... EMW’s doctors simply do not want to provide fetal demise before a D&E procedure, and their opposition to fetal demise creates a potential conflict of interest that deprives them of standing to bring this facial challenge against H.B. 454.
Courthouse News Service reports on the decision.
[Thanks to Scott Mange for the lead.]
