September 12, 2017
I feel like I’ve already written this article before I’ve even started. It’s a story about a far-right Christian conservative governor of a red state who is determined to make his state the first one to completely eliminate abortion in its borders. It’s about a struggling abortion provider and their staff trying to meet the needs of patients not just from their own city and state but from those that surround them, but are instead in danger of shutting their doors because the local government is demanding a medically unnecessary transfer agreement to a local hospital in order for the clinic to remain operational. And it’s about an anti-abortion legal team that claims that they are simply trying to protect a patient from physical harm by forcing that person to go out of state for an abortion, rather than about making an abortion so difficult to access that the person cannot get one at all.
That’s because I have already written this article before. I was writing it in 2013 when the state of North Dakota tried to close Red River Women’s Clinic by requiring a similar transfer agreement. At that time the state’s Republican governor Jack Dalrymple signed the bill into law despite knowing it was unconstitutional, saying, “The added requirement … greatly increases the chances that this measure will face a court challenge. Nevertheless, it is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions.” The clinic eventually managed to convince one hospital to offer them an agreement, allowing the clinic to remain open.
Before that, I wrote in 2012, when the state of Mississippi proposed the first transfer agreement bill, and Republican governor Phil Bryant announced, “This legislation is an important step in strengthening abortion regulations and protecting the health and safety of women. As governor, I will continue to work to make Mississippi abortion-free.”
In fact, I wrote an entire chapter about this in my book just five years ago, noting that transfer agreements were a feel-good model anti-abortion bill meant at best to counter the image that abortion opponents don’t care about women by claiming they really just want them safe, and at worst to provide a quick, painless way to shutter clinics by mandating they work with hospitals that often have no desire to be associated with them.
I shouldn’t have to be writing this article again. In June 2016, the Supreme Court weighed in on mandatory transfer agreements, calling them an undue burden on a person’s right to access an abortion. In a five to three vote they rejected the state of Texas’s claim that a clinic must have a relationship with a local hospital in order to provide backup on the rare occasion that a medical emergency does occur, and specifically shot down the state’s claim that if a Texas clinics were to difficult to access a Texas patient would be just as well serviced if they crossed state lines to terminate a pregnancy instead.
I shouldn’t be writing this article again. We know that it is unconstitutional to shut down every abortion clinic in a state because the 5th Circuit told us so in 2014 when it blocked Mississippi’s transfer agreement law for good. “A state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights,” Judge E. Grady Jolly wrote at the time, adding, “Previability, a woman has the constitutional right to end her pregnancy by abortion,” and that the law would, “effectively extinguishes that right within Mississippi’s borders.” It was affirmed again in 2015 when the Supreme Court chose not to take up the case and instead let the lower ruling stand.
Yet somehow, here I am once again writing this same article. Kentucky abortion opponents and their extremist governor Matt Bevin have become so obsessed with making the state “abortion-free” that the Cabinet of Health and Family Services revoked the license of EMW Women’s Surgical Center in March, hoping to close the last remaining clinic in the state.
A judge stopped that order to close from being enforced until a full hearing, and that hearing ended last Friday. The arguments from plaintiffs and defendants were identical to those of every similar case before it. One side claimed that transfer agreements create better safety and patient outcomes despite admitting they have no studies or other evidence to support that claim, the other argued that the rules are merely a ploy to close clinics and proved that fact by pointing out that hey, these rules are closing clinics when they are enforced.
Even Kentucky’s argument that pregnant people could go to other states for abortions is a total rehash of every other case that proceeded it. “The state argued throughout the trial that a woman's right to abortion would not be infringed upon if all of the abortion clinics in Kentucky closed, because women could access abortion clinics in a number of cities in neighboring states,” CNN reports. Just like Mississippi, their justification was that they could “lean on its sovereign neighbors” to provide the legal, constitutional medical care it refuses to offer.
So why am I still writing this exact same article again, even though multiple judges and the Supreme Court itself has already ruled that transfer agreements and admitting privileges requirements are an unconstitutional burden on the right to an abortion if they close down most, much less all abortion clinics in the state? Because Kentucky is being used as model to urge other states to proceed down their exact same path—yanking licenses and closing clinics despite courts consistently ruling against them.
“Gov. Matt Bevin has been a breath of fresh air that takes enforcement of Kentucky laws seriously,” Troy Newman, head of anti-abortion group Operation Rescue (and, according to him, the initial proponent of the first admitting privileges law in Mississippi), said in a statement. “There are many states currently controlled by pro-life administrations that must find the courage to follow Kentucky’s lead and act swiftly to enforce state laws.”
There are currently 33 states in Republican control, and apparently an unending supply of conservative religious legal firms eager to represent them should they decide to take a go at passing and enforcing unconstitutional abortion bills. Despite a major win in 2016 with Whole Women’s Health v. Hellerstedt, the right has chosen to pursue long, expensive legal battles, even if it means arguing the same case repeatedly.
After all, they have nothing to lose. Court challenges drain the resources of Center for Reproductive Rights, the ACLU, and the clinics involved, and should the states lose, their own costs are paid for by the local taxpayers. It’s no wonder that abortion opponents are eager to goad more governor’s into following Bevin’s footsteps. It is literally how firms like ADF and Liberty Counsel get their funding.
I’ve already written this article before. And despite everything, I’m writing it yet again. But the worst part is, no matter how many times the court says no, I have a feeling I will be writing it many, many more times to come.