Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

Apr 5 2019

Ferguson, 20 other AGs urge court to strike down Kentucky anti-abortion law

OLYMPIA — Attorney General Bob Ferguson 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.

The brief, led by Nevada Attorney General Aaron Ford, argues that the availability of abortion services in neighboring states does not excuse a 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.

“This law is a clear violation of a woman’s constitutional right to choose,” Ferguson said. “It would leave Kentucky without any safe, licensed abortion provider at all. It’s shocking that the defenders of this law are arguing that women’s constitutional rights are not unduly burdened because they can travel to a neighboring state for their reproductive health care. My colleagues across the country and I urge the court to block this unconstitutional law.”

The implications of this case for the women of Kentucky are particularly severe, as the law would effectively eliminate the only abortion provider in the state. In their brief, the attorneys general assert 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.

EMW Women’s Surgical Center (EMW), the plaintiff in the case, 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 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. The attorneys general filed their amicus brief in support of Planned Parenthood and EMW’s legal challenge.

This amicus brief was led by Nevada Attorney General Aaron Ford and joined by the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.


The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.


Brionna Aho, Communications Director, (360) 753-2727; Brionna.aho@atg.wa.gov