Planned Parenthood Asks Court to Hold Kentucky Governor in Contempt

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Analysis The Politics of Politics

Planned Parenthood Asks Court to Hold Kentucky Governor in Contempt

Imani Gandy

Gov. Matt Bevin has enacted a series of increasingly ridiculous requirements to try and decimate abortion access in the state.

On August 16, Kentucky state officials issued a letter denying Planned Parenthood of Indiana and Kentucky (PPINK) a license to perform abortions at the clinic it opened in Louisville four years ago. Unless a federal court steps in, there will continue to be only one clinic in the state. This is bad news for pregnant people in Kentucky, but great news for Gov. Matt Bevin, a staunchly anti-choice Republican who is trying to eradicate abortion access there.

The denial letter was the culmination of a protracted battle between PPINK and Bevin over regulations—which have been in place since the ’90s—requiring abortion providers to maintain transfer agreements with a local hospital and ambulance service in case of emergency. After the Bevin administration kicked up a fuss, in September 2018, U.S. District Court Judge Greg N. Stivers permanently blocked Kentucky from enforcing these agreement requirements. And since Kentucky officials could no longer deny PPINK a license on that basis, it sent a denial letter that claimed the clinic had been performing unlicensed abortions—even though Kentucky officials had asked them to begin providing those abortions in the first place.

PPINK which has complied with the Bevin administration’s increasingly ridiculous requirements, has had enough. Last Wednesday, the clinic filed a motion before Judge Stivers, seeking to hold Gov. Bevin and former Secretary of the Cabinet for Health and Family Services (CHFS) Vickie Yates Brown Glisson in contempt. It argues that the defendants “have now defied the Court’s specific and definite orders on at least six occasions.”

PPINK has been trying to obtain a license from CHFS to perform abortions at its clinic in Louisville since it opened in 2015. If granted the license, PPINK would become Kentucky’s second abortion clinic alongside EMW Women’s Surgical Center—which, by the way, is also battling the Bevin administration’s efforts to shut it down.

PPINK originally applied for a license to conduct abortions in November 2015 when Gov. Steve Beshear (D) was still in office. At that point, then-Inspector General Maryellen Buxton Mynear informed PPINK that its licensing application was complete. She told PPINK that it would have to perform abortion services so that the state could perform a site inspection to ensure that the clinic was complying with Kentucky’s regulations. The clinic began performing abortions—again, as was required by the Inspector General—in anticipation of this inspection.

But in December 2015, Republican Matt Bevin was inaugurated as governor of Kentucky, and everything started going sideways. Soon after, his chief of staff Steven Davis personally visited the Inspector General’s office, reviewed PPINK’s license application, removed the Louisville facility from the list for site inspections, and instructed the acting Inspector General to send PPINK an application deficiency letter that Davis had already drafted. Based on PPINK’s complaint, CHFS cited issues like hospital distance and clerical errors—basically, any reasons to weaponize 20-year-old regulations in order to deny abortions.

After PPINK sought relief in federal court, Judge Stivers issued a temporary restraining order in March 2017 and then issued a permanent injunction blocking the statutes in September 2018. Stivers ruled that the statutes violated the 14th Amendment of the U.S. Constitution. One would think this would have been the end of the dispute. It was not.

Despite the court’s clear order, Kentucky officials continued to deny PPINK’s license application on the basis of the enjoined regulations, prompting PPINK to seek relief from the court again.

On June 25 of this year, Judge Stivers held another hearing. He ordered PPINK to update its license application by July 3 and also ordered Kentucky officials to complete the licensing process, including a site inspection, by August 19.

During that hearing, the court specifically told CHFS that if there were grounds to deny PPINK’s application, state officials were to inform the court as soon as possible after receiving PPINK’s updated application on July 3.

Again, one would think this would have been the end of the dispute. Again, it was not.

What followed was weeks of stonewalling on the state officials’ part and, according to PPINK, violations of Kentucky state Bar rules regarding ethical behavior.

Kafkaesque doesn’t begin to describe the bureaucratic nightmare Kentucky officials instituted.

Lawyers for PPINK tried repeatedly to schedule the site inspection that the judge ordered Kentucky officials to complete. That inspection never happened. CHFS sent PPINK a new checklist of demands for documentation, which PPINK responded to even though the regulations at issue do not require PPINNK to comply with the new demands. CHFS also claimed in a letter to PPINK’s lawyers that CHFS would send the required “informed consent” materials—including an abortion reversal sheet (abortion reversal is not a thing!)— to begin its abortion practice. But it conveniently neglected to include those materials. (The very fact that CHFS insisted on sending these materials by snail mail instead of emailing them is a testament to the state’s stonewalling tactics.)

PPINK says it dutifully complied with the morass of regulations and requirements, hoping that Kentucky officials would be reasonable and obey the court’s orders. But the state still sent a denial letter. This time, it was because PPINK provided “unlicensed abortions” in December 2015 soon after it opened. But remember: Kentucky officials knew that PPINK was performing abortions in December 2015,  because Kentucky officials specifically directed the clinic to begin doing so.

This was the last straw for PPINK.

“Defendant’s evasions and attempts to subvert this Court’s judgment cannot go uncorrected. The Court can and should find that Defendant’s stated reason for denying Planned Parenthood’s updated application is a mere pretext for continuing to enforce the enjoined statute,” PPINK wrote in its motion for contempt.

Kentucky officials were well aware of PPINK’s performing “unlicensed abortions” years ago, and there was no reason to wait until three days before the court’s deadline to inform PPINK that it denied the license on that basis, PPINK argues. It was pretextual and in bad faith. Certainly, CHFS knew of the “unlicensed abortion” issue on June 25 and should have informed the court during the hearing. It did not. And certainly immediately after receiving PPINK’s updated application on July 3, CHFS should have told the Court of its intent to deny the license on that basis, as it was ordered to. It did not.

The Bevin administration could avoid a contempt order—and the possible attendant fines and reimbursement for PPINK’s court costs—by complying with the court’s direct and clear orders. But Bevin is convinced that the court’s ruling blocking the transfer and ambulance agreement provisions of Kentucky law will be reversed by the Sixth Circuit Court of Appeals. (And he may be right.)  Oral arguments regarding those provisions were on August 8. So Bevin and his team continue to stall, flouting court orders to ensure that the Louisville clinic cannot perform abortions.

And if the Sixth Circuit upholds Judge Stiver’s ruling, who knows what tactics Bevin will devise next.