An abortion-rights group is disagreeing with Kentucky’s Democratic attorney general over how to challenge a restrictive state abortion policy as they both seek to ensure that the state’s only remaining clinic providing the procedure remains open.

In a legal brief supporting the EMW Women’s Surgical Center in Louisville, Attorney General Andy Beshear urged a federal appeals court to rule against a regulation that imposes stricter standards on mandatory agreements between an abortion clinic and a hospital and ambulance service, but not against the law underlying the regulation.

That runs counter to arguments by the American Civil Liberties Union, which says unless the law is struck down, it will remain an ongoing threat to the clinic. The ACLU is urging the 6th U.S. Circuit Court of Appeals to uphold a lower-court decision invalidating both the state law and the regulation.

The law requires an abortion clinic to have written transfer agreements with an ambulance service and hospital in case of emergencies.

Beshear, who is running for governor, said in his court filing that for nearly two decades, EMW had no trouble meeting the law’s transfer agreement requirements until Republican Gov. Matt Bevin took office. Bevin, who is seeking re-election this year, is a staunch abortion opponent.

But the ACLU says that’s the problem: As long as the law stands, the clinic remains vulnerable to a hostile governor.

“Gov. Bevin was using the statute as written to go after EMW,” ACLU attorney Brigitte Amiri said in a phone interview Wednesday. “And so unless you strike it down, what is to prevent Bevin from doing the same thing?”

She added, “This is a tool that a hostile governor has used to try to eliminate access to abortion in Kentucky. That tool serves no medical benefit and creates a substantial obstacle in the path of almost all women seeking abortion in Kentucky, and the (federal) district court properly struck it down.”

Beshear spokeswoman Crystal Staley on Thursday stressed Beshear’s support of “women’s constitutional reproductive health care rights” and the ACLU’s lawsuit “against the governor’s illegal action.”

“The office has simply taken another legal approach than that of the ACLU,” she said.
Bevin’s office, meanwhile, condemned Beshear for taking EMW’s side in the legal fight.

“In doing so, Andy Beshear once again strongly aligned himself with the pro-abortion groups, ACLU and Planned Parenthood,” Bevin spokesman Woody Maglinger said in a statement.

Maglinger said Beshear’s position runs counter to “the interests and popular will of the vast majority of Kentuckians who value not only life, but the safety of women who elect to undergo abortions.” Abortion looms as a potentially big issue in this year’s race for Kentucky governor.

A federal judge in Kentucky struck down the transfer agreement law and regulation in 2018. The state appealed to the Cincinnati-based 6th Circuit. The ACLU is representing the abortion clinic in its lawsuits challenging a series of Kentucky laws putting more restrictions on abortion.

The ACLU agrees with Beshear that the transfer agreement regulation should remain struck down. Beshear’s court filing said the Bevin administration’s stricter regulation had “no basis in medical science” and that if left unchallenged it would have led to EMW’s closure.

“In this case, the circumstances surrounding the enactment of the regulation demonstrate that it was intended not to protect women, but instead to prevent women from exercising their constitutional right,” Beshear’s filing said.

The law’s foes argue it’s unnecessary because clinics already have access to local hospital and emergency medical transportation. Lawyers for Bevin say the law is necessary for patient safety.

EMW was joined in the lawsuit by Planned Parenthood of Indiana and Kentucky, which sought a license to provide abortions at a clinic in Louisville. Bevin’s administration denied a license to Planned Parenthood, rejecting its transfer agreements as insufficient.

The ACLU and Bevin’s administration are also battling in court over a new Kentucky law that would mostly ban abortions once a fetal heartbeat is detected.

A federal judge recently extended a temporary order preventing the heartbeat law from taking effect while he determines its constitutionality. A fetal heartbeat can be detected as early as six weeks into pregnancy, before many women know they’re pregnant.

Beshear has said he thinks the heartbeat bill is unconstitutional.