Case: EMW Women's Surgical Center v. Cameron

This case is about Kentucky's Trigger Ban (KRS 311.772) and Six-Week Ban (KRS 311.7701) prohibiting abortion following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Org. to overturn Roe v. Wade. On June 27, 2022, Planned Parenthood, the ACLU, and the EMW Women's Surgical Center brought suit against the state in the Jefferson Circuit Court in the State of Kentucky, claiming that the statutes violate state constitutional rights to privacy and self-determination. Plaintiffs sought (1) declaratory relief that the Kentucky trigger ban is unconstitutional and unenforceable, (2) an injunction barring the state from enforcing the Trigger Ban and the Six-Week Ban, and (3) attorney fees and costs. This case was assigned to Jefferson County Circuit Judge Mitch Perry.

On June 29, 2022, the Court granted Plaintiffs' request for a restraining order, temporarily prohibiting the enforcement of the two abortion bans. Defendants appealed this restraining order to the Kentucky Court of Appeals and to the Supreme Court of Kentucky, who both denied the appeals.

Following this, on July 22, 2022, the Court granted a temporary injunction that blocked enforcement of the ban pending full resolution of the suit. The Court concluded that there was a substantial likelihood that these laws violate the rights to privacy, self-determination, equal protection, and religious freedom as protected by various sections of the Kentucky Constitution. The Court also held that the trigger ban was likely an unconstitutional delegation of legislative authority and unconstitutionally vague.

Defendants appealed this injunction to the Kentucky Court of Appeals on July 28, 2020, seeking an emergency stay. This appeal was granted on August 1, 2022, dissolving the injunction and allowing the abortion bans to continue being enforced while litigation takes place. The Court granted the stay, because it concluded that Defendants would suffer irreparable injury under the injunction by not being able to enforce the law and because abortions completed under the injunction cannot be undone. The Court did note that its order should not be construed to limit medical providers’ ability to act to protect maternal health.

In response to the stay, Plaintiffs filed an appeal to the Supreme Court of Kentucky on August 2, 2022. On August 18, 2022, the Supreme Court of Kentucky agreed to hear oral arguments and set the hearing date for November 15, 2022. On February 16, 2023, the Supreme Court of Kentucky affirmed the decision of the appellate court to allow the abortion bans to be in effect as litigation continued. First, the court also concluded that the abortion providers lacked third-party standing to challenge either ban, but that they had first-person standing to challenge the trigger ban on behalf of themselves. The court then reasoned that the initial court had abused its discretion by incorrectly finding that the irreparable harm requirement was satisfied and by failing to start from the presumption that the bans were constitutionally enacted when balancing the equities.  As a result, abortion remained banned in Kentucky. 2023 WL 2033788. This case remains ongoing.