Daniel Cameron, in His Official Capacity as Attorney General of the Commonwealth of Kentucky v. Emw Women's Surgical Center, P.S.C., on Behalf of Itself, Its Staff and Its Patients

RENDERED: FEBRUARY 16, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0329-TG
(2022-CA-0906)
DANIEL CAMERON, IN HIS OFFICIAL APPELLANT
CAPACITY AS ATTORNEY GENERAL
OF THE COMMONWEALTH OF
KENTUCKY
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
V. NO. 22-CI-003225
EMW WOMEN’S SURGICAL APPELLEES
CENTER, P.S.C., ON BEHALF OF
ITSELF, ITS STAFF, AND ITS
PATIENTS; ERNEST MARSHALL, M.D.,
ON BEHALF OF HIMSELF AND HIS
PATIENTS; PLANNED PARENTHOOD
GREAT NORTHWEST, HAWAI’I,
ALASKA, INDIANA AND KENTUCKY,
INC., ON BEHALF OF ITSELF, ITS STAFF,
AND ITS PATIENTS
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING AND REMANDING
EMW Women’s Surgical Center, P.S.C. (EMW); Dr. Ernest Marshall (Dr.
Marshall); and Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana,
and Kentucky, Inc. (Planned Parenthood Louisville) (collectively, the abortion
providers) filed for injunctive and declaratory relief against two statutes that
effectively prohibit abortions in Kentucky except in limited circumstances
where it is necessary to preserve the life of the mother. Following a hearing,
the Jefferson Circuit Court granted an injunction against the statutes, which
prevented Attorney General Daniel Cameron (Attorney General) from enforcing
the statutes pending a trial on the merits. After the injunction was entered,
the Attorney General filed for emergency and interlocutory relief with the Court
of Appeals. The Court of Appeals granted the Attorney General’s motion for
emergency relief thereby dissolving the circuit court’s temporary injunction.
The Court of Appeals then recommended that the Attorney General’s claim for
injunctive relief be transferred to this Court, which we accepted.
After thorough review, we hold that the abortion providers lack third-
party standing to challenge the statutes on behalf of their patients.
Notwithstanding, the abortion providers have first-party, constitutional
standing1 to challenge one of the statutes on their own behalf. We affirm the
Court of Appeals’ holding that the circuit court abused its discretion by
granting the abortion providers’ motion for a temporary injunction and remand
to the circuit court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statutes at issue in the underlying litigation are KRS2 311.772 (the
trigger ban) and KRS 311.7707-11 (the heartbeat ban).
The trigger ban prohibits anyone from knowingly “[administering] to,
[prescribing] for, [procuring] for, or [selling] to any pregnant woman any
1 Throughout this opinion, “first-party standing” and “constitutional standing”
are used interchangeably.
2 Kentucky Revised Statute.
2
medicine, drug, or other substance with the specific intent of causing or
abetting the termination of the life of an unborn human being[,]”3 and from
knowingly “[using] or [employing] any instrument or procedure upon a
pregnant woman with the specific intent of causing or abetting the termination
of the life of an unborn human being[.]”4
The trigger ban contains two exceptions. The first is if a licensed
physician, in his or her reasonable medical judgment, deems an abortion
necessary to “prevent the death or substantial risk of death due to a physical
condition, or to prevent the serious, permanent impairment of a life-sustaining
organ of a pregnant woman.”5 However, the physician is mandated to make
“reasonable medical efforts under the circumstances to preserve both the life of
the mother and the life of the unborn human being in a manner consistent
with reasonable medical practice[.]”6 The second exception is if medical
treatment rendered by a licensed physician “results in the accidental or
unintentional injury or death to the unborn human being.”7
3 KRS 311.772(3)(a)1.
4 KRS 311.772(3)(a)2. The trigger ban defines “unborn human being” as “an
individual living member of the species homo sapiens throughout the entire embryonic
and fetal stages of the unborn child from fertilization to full gestation and childbirth.”
KRS 311.772(1)(c).
5 KRS 311.772(4)(a).
6 Id.
7 KRS 311.772(4)(b).
3
Under the trigger ban, there are no civil or criminal penalties imposed
upon a woman who receives an abortion in violation of the statute.8 However,
any other person who violates the statute “shall be guilty of a Class D felony,”9
punishable by one to five years’ imprisonment.10
The trigger ban was enacted in 2019 but was not enforceable until either
the United States Supreme Court reversed Roe v. Wade,11 or the United States
Constitution was amended to restore the authority to regulate abortions back
to the individual states.12 On June 24, 2022, the U.S. Supreme Court
overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization,13
triggering the statute’s enforcement provision.
The heartbeat ban declares that a fetal heartbeat “has become a key
medical predictor that an unborn human individual will reach live birth.”14
Accordingly, any person wishing to perform or induce an abortion must first
determine “whether there is a detectible fetal heartbeat of the unborn human
individual the woman is carrying.”15 Generally, fetal cardiac activity is
detectable around six weeks post-conception. The heartbeat ban prohibits any
8 KRS 311.772(5) (“Nothing in this section may be construed to subject the
pregnant mother upon whom any abortion is performed or attempted to any criminal
conviction and penalty.”).
9 KRS 311.772(3)(b).
10 KRS 532.060(2)(d).
11 410 U.S. 133 (1973).
12 KRS 311.772(2)(a)-(b).
13 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022).
14 KRS 311.7702(5).
15 KRS 311.7704(1)(a). See also KRS 311.7705(1).
4
person from “intentionally [performing] or [inducing] an abortion on a pregnant
woman with the specific intent of causing or abetting the termination of the life
of the unborn human individual the pregnant woman is carrying and whose
fetal heartbeat has been detected[.]”16
Under the heartbeat ban, a physician is only permitted to perform or
induce an abortion prior to determining that a fetal heartbeat is present if the
physician believes that a “medical emergency” exists that prevents compliance
with the requirement of determining the existence of a heartbeat.17 And, a
physician may only terminate a pregnancy after establishing the existence of a
heartbeat if the physician “performs a medical procedure that, in the
physician's reasonable medical judgment, is designed or intended to prevent
the death of the pregnant woman or to prevent a serious risk of the substantial
and irreversible impairment of a major bodily function of the pregnant
woman.”18 The only other exception to the heartbeat ban is ectopic
pregnancies.19
16KRS 311.7706(1). An “unborn human individual” is defined as “an individual
organism of the species homo sapiens from fertilization until live birth.” KRS
311.7701(16), KRS 311.781(9).
17 KRS 311.7705(2)(a). A “medical emergency” is “a condition that in the
physician's reasonable medical judgment, based upon the facts known to the
physician at that time, so complicates the woman's pregnancy as to necessitate the
immediate performance or inducement of an abortion in order to prevent the death of
the pregnant woman or to avoid a serious risk of the substantial and irreversible
impairment of a major bodily function of the pregnant woman that delay in the
performance or inducement of the abortion would create[.]” See KRS 311.7701(10),
KRS 311.781(3).
18 KRS 311.7706(2)(a).
19 KRS 311.7703 (“KRS 311.7704, 311.7705, and 311.7706 apply only to
intrauterine pregnancies.”).
5
As with the trigger ban, a woman upon whom an abortion is performed
in violation of the heartbeat ban is subject to neither criminal nor civil
penalties.20 But violation of the heartbeat ban by any other individual is a
Class D felony.21 The statutes further provide that a woman upon whom an
abortion is performed or induced in violation of the heartbeat ban “may file a
civil action for the wrongful death of her unborn child” against the person who
performed or induced the abortion.22
Neither the trigger ban nor the heartbeat ban contains an exception for
rape, incest, or severe fetal abnormalities.
On June 27, 2022, EMW, Dr. Marshall, and Planned Parenthood
Louisville filed a complaint in Jefferson Circuit Court against the Attorney
General23 seeking injunctive and declaratory relief from the enforcement of the
trigger ban and the heartbeat ban.24 EMW is a Louisville-based corporation
that is licensed to provide abortion services. Dr. Marshall is a board-certified
obstetrician-gynecologist (OBGYN) who owns EMW and provides abortion
services to EMW patients. Planned Parenthood Louisville is a nonprofit
20 KRS 311.7705(4), KRS 311.7706(4).
21 KRS 311.990(21)-(22).
22 KRS 311.7709(2).
23 The complaint also named several other Kentucky officials in their official
capacity, specifically the Secretary of the Cabinet for Health and Family Services, the
Executive Director of the Kentucky Board of Medical Licensure, and the
Commonwealth’s Attorney for the 30th Judicial Circuit of Kentucky. However, the
Attorney General is the only defendant before us in this appeal.
24 Left unchallenged was another Kentucky abortion statute, KRS 311.782,
which prohibits abortions “when the probable gestational age of the unborn child is
fifteen (15) weeks or greater.”
6
organization that operates two health centers in Kentucky; its Louisville center
provides abortion services.
Prior to the U.S. Supreme Court ruling in Dobbs, EMW and Planned
Parenthood Louisville provided abortion inducing medication up to ten weeks
after a patient’s last missed period. EMW also provided elective procedural
abortions up to twenty-one weeks and six days after a patient’s last missed
period, and Louisville Planned Parenthood provided elective procedural
abortions up to thirteen weeks and six days after a patient’s last missed period.
The abortion providers’ complaint alleged that “[t]he threat of criminal penalties
from the Trigger Ban has forced [them] to cancel the appointments of patients
seeking this time-sensitive care,” and that “in the near future, when the federal
court lifts the injunction currently preventing enforcement of [the heartbeat
ban],25 the threat of additional criminal penalties from that Ban will similarly
force [them] to turn away patients seeking an abortion at or after approximately
six weeks, even if the Trigger Ban is enjoined.”
Each of the abortion providers stated in their complaint that they were
challenging the bans on behalf of themselves and their patients, but no
individual patient was named as a plaintiff. On behalf of their patients, the
25 According to the complaint, before Dobbs was issued, EMW and Dr. Marshall
were granted a temporary restraining order against the enforcement of the heartbeat
ban in the Western District of Kentucky. EMW Women's Surgical Ctr., P.S.C. v.
Beshear, 3:19-CV-178-DJH, 2019 WL 1233575 (W.D. Ky. Mar. 15, 2019). Following
Dobbs, EMW and Dr. Marshall filed a motion to dismiss the federal case without
prejudice in light of Dobbs. On June 30, 2022, the federal injunction was dissolved.
EMW Women’s Surgical Ctr., P.S.C. v. Beshear, No. 3:19-CV-178-DJH (W.D. Ky. June
30, 2022).
7
abortion providers alleged that the trigger ban and the heartbeat ban violated
their patients’ right to privacy as guaranteed by Sections 1 and 2 of the
Kentucky Constitution and their patients’ right to self-determination as
guaranteed by Sections 1 and 2 of the Kentucky Constitution.
Unspecific to their patients’ rights, the abortion providers alleged that the
trigger ban: improperly delegated the power of the General Assembly to define
the scope of Kentucky criminal law in violation of Sections 27, 28, and 29 of
the Kentucky Constitution; took effect upon the authority of the U.S. Supreme
Court instead of the General Assembly in violation of Section 60 of the
Kentucky Constitution; violated the abortion providers’ right to due process as
guaranteed by Section 2 of the Kentucky Constitution by imposing serious
criminal penalties while failing to give them fair notice of when it took effect;
and was constitutionally unintelligible in violation of Sections 27, 28, and 29 of
the Kentucky Constitution by failing to intelligibly define the point at which the
ban would become enforceable. The abortion providers made no arguments
against the heartbeat ban in relation to their own constitutional rights.
On June 30, 2022, three days after the complaint was filed, the circuit
court issued a temporary restraining order against the enforcement of the
trigger ban and the heartbeat ban at the behest of the abortion providers.
Thereafter, on July 6, the circuit court held a hearing on the request for a
temporary injunction. The court heard testimony from two witnesses proffered
by the abortion providers and two witnesses for the Attorney General.
8
On July 22, the circuit court entered an opinion and order granting the
temporary injunction. The circuit court first addressed whether the abortion
providers had the requisite standing to bring their asserted claims. Regarding
whether the abortion providers had first-party, constitutional standing to
assert their own rights in challenging the bans the circuit court ruled:
Kentucky courts have “the constitutional duty to ascertain the
issue of constitutional standing . . . to ensure that only justiciable
causes proceed in court.” Commonwealth, Cabinet for Health &
Fam. Servs., Dep’t for Medicaid Servs. v. Sexton by & through
Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185, 192 (Ky. 2018)
. . . In Sexton, the Kentucky Supreme Court adopted the federal
standard for standing as set forth in Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992), holding that “for a party to sue in Kentucky,
the initiating party must have the requisite constitutional standing
to do so, defined by three requirements: (1) injury, (2) causation,
(3) redressability. In other words, [a] plaintiff must allege personal
injury fairly traceable to the defendant’s allegedly unlawful conduct
and likely to be redressed by the requested relief. Sexton, 566
S.W.3d at 196.
[. . .]
The challenged statutes directly prohibit the Plaintiffs from lawfully
engaging in both medication and procedural abortions. The
Attorney General is attempting to enforce these statutes against
the Plaintiffs. An order of this Court preventing enforcement of
these statutes would provide the Plaintiffs with adequate relief.
Therefore, the Plaintiffs have satisfactorily established all the
required elements of standing and can proceed with this suit.
Concerning whether the abortion providers had third-party standing to
challenge the bans by asserting violations of its patients’ rights, the circuit
court found:
[t]he Attorney General claims the Plaintiffs lack the standing to
bring this suit because the facilities do not have third party
standing to represent the rights of their patients. However, the
Court finds that the Plaintiffs do have standing to proceed with
9
this suit. While not binding, since Kentucky adopted the federal
standing guidelines, federal cases provide persuasive authority.
Federal courts have long allowed for third party standing in
situations where “enforcement of the challenged restriction against
the litigation would result indirectly in the violation of third parties’
rights.” Warth v. Seldin, 422 U.S. 490, 510 (1975). Third party
standing should be allowed when: “(1) the interests of the litigant
and the third party are aligned, and (2) there is an obstacle to the
third party asserting her own rights.” Singleton v. Wulff, 428 U.S.
106, 114-18 (1976).
Recently, the Supreme Court reaffirmed the practicality of third
party standing for abortion providers in June Medical Services, LLC
v. Russo, 140 S.Ct. 2103, 2118 (2020). The Supreme Court
concluded that abortion providers had third party standing to
assert claims on behalf of their patients because the challenged
laws regulated their conduct, including by threat of sanctions, the
providers had every incentive to resist efforts at restricting their
operations, and the providers were far better positioned than their
patients to challenge the restrictions. Id. at 2119.
The circuit court further discussed the Attorney General’s contention that “the
United States Supreme Court undermined third-party standing in Dobbs to the
point it can no longer be relied upon.” The circuit court dismissed this
argument finding that “[w]hile the United States Supreme Court expressed
displeasure with how abortion related litigation had proceeded with the
doctrine of third-party standing, this comment came in dicta, and is therefore
not binding upon this Court.” Consequently, the circuit court ruled that the
abortion providers also had third-party standing to challenge the bans on
behalf of their patients.
With standing established, the circuit court went on to address the
aptness of granting a temporary injunction. In accordance with Kentucky’s
well-established standard for demonstrating entitlement to an injunction, a
10
party seeking an injunction must show: (1) that irreparable injury is probable if
injunctive relief is not granted; (2) that the equities—including the public
interest, harm to the defendant, and preservation of the status quo—weigh in
favor of the injunction; and (3) that there is a serious question warranting trial
on the merits.26
On the first prong, injury, the circuit court noted that from the date
Dobbs was rendered to the date that the temporary restraining order was
entered in this case, EMW turned away almost 200 patients with previously
scheduled appointments. Further, an OBGYN who was a witness for the
abortion providers testified that the risks presented by abortions increase the
later in the pregnancy that the procedure is performed, and therefore any delay
in scheduling and performing an abortion comes with increased risk. Finally,
the court found that waiting until final judgment on the issues presented in
this case, absent injunctive relief, would be effectively meaningless to many
women because they would either be past gestational time restrictions or would
be forced to carry their pregnancy to term.
Concerning the second prong, a weighing of the equities, the court first
found that abortion is a form of healthcare, and that the denial of healthcare is
detrimental to the public interest. Additionally, the abortion providers’ second
witness, an expert in economics and policy evaluation, testified that abortion
bans disproportionately affect the poor and disadvantaged members of society,
26 Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978).
11
and can inflict serious financial, educational, and professional burdens on
women and their families. The circuit court further ruled that, at most, the
only harm to the Commonwealth that would result from injunction would be
delayed enforcement. Finally, it found that providing injunctive relief would
simply restore the status quo that existed in the Commonwealth for nearly fifty
years between the issuance of Roe v. Wade and Dobbs.
The circuit court also found that the abortion providers demonstrated
serious questions warranting a trial on the merits. The court ruled that the
trigger ban was an unconstitutional delegation of legislative power violative of
Sections 27, 28, and 29 of the Kentucky Constitution, and that it was
unconstitutionally vague because the date upon which it became effective was
unclear. The court further determined that the heartbeat ban violated the right
to privacy and right to self-determination under Sections 1 and 2 of the
Kentucky Constitution, and, sua sponte, ruled that the heartbeat ban violated
the right to equal protection under Sections 1, 2, and 3 of the Kentucky
Constitution as well as the right to religious freedom under Section 5 of the
Kentucky Constitution.
Based on its rulings, the circuit court lifted the temporary restraining
order against the bans and entered a temporary injunction. After the
temporary injunction was in place, the Attorney General filed a motion for
emergency relief pursuant to RAP27 20(D)28 in the Court of Appeals. Under RAP
27 Kentucky Rule of Appellate Procedure.
28 Formerly Kentucky Rule of Civil Procedure (CR) 65.07(6).
12
20(B)29 a party adversely affected by the entry of a temporary injunction may
file a motion for relief from that order within twenty days of its entry. And, “[i]f
a movant will suffer irreparable injury before a motion under [RAP 20(B) or (C)]
will be considered by a panel of the Court of Appeals, the movant may request
emergency relief[.]”30 The Court of Appeals, acting through one judge on the ex
parte emergency motion, held that the Attorney General made the required
showings for relief. It reasoned that, as the statutes were duly enacted, they
carried a presumption of constitutionality and that any abortions performed
while the constitutionality of the statutes was addressed on the merits could
not be undone.
In granting the Attorney General’s motion for emergency relief, the Court
of Appeals dissolved the circuit court’s temporary injunction against the bans.
The Attorney General’s motion for interlocutory relief under RAP 20 was then
set to be assigned to a three judge Court of Appeals panel. Before a three-
judge panel could address the Attorney General’s motion for interlocutory
relief, the abortion providers filed for emergency relief from the Court of
Appeals’ initial ruling in this Court under RAP 20(F)31. This Court denied the
abortion providers’ emergency motion, as it found no “extraordinary cause”32
29 Formerly CR 65.07(1).
30 RAP 20(D), formerly CR 65.07(6).
31 Formerly CR 65.09(3).
32 RAP 20(F)(1) (“Such a motion will be entertained only for extraordinary cause
shown in the motion.”).
13
warranting immediate review.33 However, after the abortion providers filed
their motion for emergency relief, the Court of Appeals recommended that the
Attorney General’s motion for interlocutory relief be transferred to this Court
for adjudication in the first instance.34 We accepted transfer.35 Accordingly,
the issue now before us is whether the circuit court erred by issuing a
temporary injunction against the trigger ban and the heartbeat ban.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. Standing36
We begin by addressing whether the abortion providers have the
requisite standing to challenge the bans. We review issues of standing de
novo,37 affording no deference to the circuit court’s ruling.38
EMW Women's Surgical Ctr., P.S.C. v. Cameron, 2022-SC-0326-I, 2022 WL
333641196, at *1 (Ky. Aug. 18, 2022).
34 Id.35 Id.36 The issue of standing is properly before us. This Court recently held that,
while a circuit court’s ruling on standing does not itself give rise to the right of
interlocutory relief, this “should not constrain the power of the appellate court . . .
from inquiring into whether a plaintiff has the requisite standing to sue when an
interlocutory appeal is properly before an appellate court on an issue recognized as
immediately appealable.” Sexton, 566 S.W.3d at 191. See also, Overstreet v.
Mayberry, 603 S.W.3d 244, 251 (Ky. 2020) (holding that this Court may properly
address constitutional standing in an interlocutory appeal that is properly before it on
independent grounds). Here, the circuit court’s issuance of a temporary injunction
was immediately appealable in accordance with RAP 20(B). The abortion providers’
standing may therefore be addressed herein.
37 Overstreet, 603 S.W.3d at 252.
38 See, e.g., Marshall v. Ky. Farm Bureau Mut. Ins. Co., 618 S.W.3d 499, 502 (Ky.
App. 2020).
14
Without question, one of the most important and fundamental principles
that endures in this country’s particular form of government is the separation
of powers amongst the legislative, judicial, and executive branches. The U.S.
Supreme Court has accordingly interpreted the U.S. Constitution as providing
a “series of limits on the federal judicial power.”39 One such limit is Article III
of the U.S. Constitution’s directive that federal courts may only consider “cases
and controversies.”40 The U.S. Supreme Court has identified five major
justiciability doctrines to ensure that only cases and controversies are
considered by the federal judiciary.41 Those doctrines are: the prohibition
against rendering advisory opinions, ripeness, mootness, the political question
doctrine, and—most significant for our purposes—standing.42 “As an aspect of
justiciability, the standing question is whether the plaintiff has alleged such a
personal stake in the outcome of the controversy as to warrant his invocation
of [a court’s] jurisdiction and to justify exercise of the court's remedial powers
on his behalf.”43 Indeed, this Court considers standing to be such a
fundamental requirement that we have previously directed that “all Kentucky
courts have the constitutional duty to ascertain the issue of constitutional
39 Sexton, 566 S.W.3d at 192-93 (quoting Edwin Chemerinsky, Constitutional
Law, 40 (Vicki Been et al. eds., 5th ed. 2013)).
40 See U.S. Const. Art. III, §2.
41 Sexton, 566 S.W.3d at 193.
42 Id.
43 Warth, 422 U.S. at 498–99 (internal citations omitted).
15
standing, acting on their own motion, to ensure that only justiciable causes
proceed in court[.]”44
In Sexton, this Court held that Section 112(5) of the Kentucky
Constitution which vests “original jurisdiction of all justiciable causes not
vested in some other court” in Kentucky’s circuit courts was a sufficient
parallel to the “cases and controversies” language of the U.S. Constitution to
adopt the federal constitutional standing doctrine espoused in Lujan.45
Consequently, unless standing is statutorily conferred, “for a party to sue in
Kentucky, the initiating party must have the requisite constitutional standing
to do so, defined by three requirements: (1) injury, (2) causation, and (3)
redressability.”46
In addition to these federal constitutional requirements, two major
federal prudential standing principles exist: (1) a party generally
may assert only his or her own rights and cannot raise the claims
of third parties not before the court, i.e., the prohibition against
third-party standing; and (2) a plaintiff may not sue as a taxpayer
who shares a grievance in common with all other taxpayers, i.e.,
the prohibition against generalized grievances.47
In contrast to first-party, constitutional standing, the prohibition against third-
party standing is a prudential doctrine, meaning it is “a salutary ‘rule of self-
restraint’ designed to minimize unwarranted intervention into controversies
44 Sexton, 566 S.W.3d at 192.
45 Id. at 195.
46 Id. at 196.
47 Id. at 193 (internal quotation marks omitted).
16
where the applicable constitutional questions are ill-defined and speculative.”48
As noted, the doctrine against third-party standing “normally bars litigants
from asserting the rights or legal interests of others in order to obtain relief
from injury to themselves.”49
This rule assumes that the party with the right has the appropriate
incentive to challenge (or not challenge) governmental action and
to do so with the necessary zeal and appropriate presentation. It
represents a healthy concern that if the claim is brought by
someone other than one at whom the constitutional protection is
aimed, the courts might be called upon to decide abstract
questions of wide public significance even though other
governmental institutions may be more competent to address the
questions and even though judicial intervention may be
unnecessary to protect individual rights[.]50
Federal case law provides a limited exception to the general rule that “a
litigant must assert his or her own legal rights and interests, and cannot rest a
claim to relief on the legal rights or interests of third parties.”51 To qualify for
the exception, a litigant bears the burden of proving that
three important criteria are satisfied: The litigant must have
suffered an “injury in fact,” thus giving him or her a “sufficiently
concrete interest” in the outcome of the issue in dispute,
[Singleton, 428 U.S. at 112, 96 S.Ct. at 2873]; the litigant must
have a close relation to the third party, id., at 113–114, 96 S.Ct., at
2873–2874; and there must exist some hindrance to the third
48Craig v. Boren, 429 U.S. 190 (1976) (citing Barrows v. Jackson, 346 U.S. 249,
255, 257 (1953); Singleton, 428 U.S. at 123-124 (Powell, J., dissenting)).
49 Warth, 422 U.S. at 509. See also Associated Indus. of Ky. v. Commonwealth,
912 S.W.2d 947, 951 (Ky. 1995) (“Ordinarily, a litigant may only assert his own
constitutional rights or immunities . . . The assertion of one's own legal rights and
interests must be demonstrated and the claim to relief will not rest upon the legal
rights of third persons.”).
50 Kowalski v. Tesmer, 543 U.S. 125, 129 (2004).
51 Powers v. Ohio, 499 U.S. 400, 410 (1991) (holding a criminal defendant has
third-party standing to raise the equal protection rights of a juror excluded from
service by the prosecution on the basis of the juror’s race).
17
party's ability to protect his or her own interests. Id., at 115–116,
96 S.Ct., at 2874–2875.52
This limited exception to the general prohibition against third-party standing is
sometimes referred to as the jus tertii doctrine.
This Court has previously invoked the general prohibition against third-
party standing to prevent a litigant from leveling a constitutional challenge
against a state statute on behalf of a third-party.53 However, to date, the issue
of whether to recognize the federal jus tertii exception has not been placed so
squarely before us. For the reasons that follow, we hereby answer that
question affirmatively and adopt the jus tertii exception as our own.
In general, the case law of this Commonwealth in the area of third-party
standing is scarce. This Court has rejected a would-be litigant’s third-party
standing to challenge a state statute in but two cases: Associated Industries
and Bradley.
In Associated Industries, this Court held that a state-wide association of
employers of lobbyists did not have third-party standing to challenge newly
enacted lobbying regulations on behalf of its employees.54 The Associated
Industries Court did not discuss standing at length and did not address
whether the jus tertii exception was applicable.55 Significantly though, the
52 Id. at 410-11.
53 Bradley v. Commonwealth ex rel. Cameron, 653 S.W.3d 870, 880 (Ky. 2022);
Associated Industries, 912 S.W.2d at 951.
54 Id.
55 See id.
18
Court relied upon Warth v. Seldin, a U.S. Supreme Court case, to support its
holding that “[t]he assertion of one’s own legal rights and interests must be
demonstrated and the claim to relief will not rest upon the legal rights of third
persons.”56 In Warth, taxpayers of Rochester, New York sought to challenge a
zoning ordinance of Penfield, New York, an incorporated municipality of
Rochester.57 The Rochester taxpayers alleged that Penfield’s consistent refusal
to build low and moderate cost housing under the ordinance forced Rochester
to provide such housing which, in turn, raised Rochester’s taxes.58 The Warth
Court ultimately rejected the Rochester taxpayers’ claim to third-party
standing. In doing so, it addressed each of the jus tertii requirements. It first
held that the taxpayer’s asserted injury of increased taxes was conjectural, and
that the line of causation between Penfield’s actions and said injury was not
apparent from the taxpayer’s complaint.59 It then went on to hold that
no relationship, other than an incidental congruity of interest, is
alleged to exist between the Rochester taxpayers and persons who
have been precluded from living in Penfield. Nor do the taxpayer-
petitioners show that their prosecution of the suit is necessary to
insure protection of the rights asserted, as there is no indication
that persons who in fact have been excluded from Penfield are
disabled from asserting their own right in a proper case.60
In our other case, Bradley, this Court held that the Floyd County Bar
Association lacked third-party standing to challenge the elimination of a Floyd
56 Id.
57 Warth, 422 U.S. at 493-94.
58 Id. at 508-09.
59 Id. at 509.
60 Id. at 510.
19
County Circuit Court division on behalf of its unspecified, third-party clients.61
Bradley also cited Warth and seemed to apply the genuine hinderance prong of
the jus tertii test: the Court found it significant that “no client or litigant with a
court date pending in [the circuit division], [had] been named as a plaintiff on
the face of Bradley’s complaint. And Bradley . . . made no argument
concerning why those unspecified clients cannot sue to remedy the injuries
alleged in the complaint.”62
Further, there are at least two specific instances in which third-party
standing is explicitly provided for in the Commonwealth, both of which are
based on U.S. Supreme Court precedent. First, we afford third-party standing
to criminal defendants to raise equal protection claims on behalf of jurors who
are excluded from service by the prosecution on the basis of race.63 And, in
cases involving challenges to state statutes that impede upon First Amendment
rights, we permit a person to whom a statute could be constitutionally applied
to challenge the statute on the ground that it may be unconstitutionally
applied to third parties in other situations not before the Court.64
61 Bradley, 653 S.W.3d at 880.
62 Id.
63 See Roe v. Commonwealth, 493 S.W.3d 814, 827-28 (Ky. 2015) (adopting
Powers v. Ohio, 499 U.S. 400 (1991)) (“Powers v. Ohio made clear that Batson's scope
extends beyond the defendant's race, holding that the Fourteenth Amendment
eliminates racial discrimination from all official acts and proceedings of the state in
the judicial system. So following Powers, a criminal defendant is essentially afforded
third-party standing to raise equal-protection claims for jurors the prosecution
excludes because of their race.”).
64 Martin v. Commonwealth, 96 S.W.3d 38, 50 (Ky. 2003) (citing Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973)) (“Generally, a person to whom a statute may
constitutionally be applied cannot challenge it on the ground that it may conceivably
20
Moreover, there has been an undeniable trend by this Court in recent
years in favor of following federal standing doctrines. As previously discussed,
in 2018, this Court explicitly adopted the constitutional standing test
established by the U.S. Supreme Court in Lujan in Sexton. And, last year in
Ward v. Westerfield we explicitly recognized that Kentucky follows the other
major federal prudential standing principle, the prohibition against generalized
grievances.65
Given this Court’s previous citation to federal case law containing the jus
tertii exception, our allowance of third-party standing in other contexts, and
our recent trend toward following federal standing principles, we can discern
no reason to now reject the federal jus tertii test as an exception to the general
prohibition against third-party standing. In addition, although we believe that
jus tertii test will be satisfied only in exceedingly rare circumstances, we do not
believe it wise to foreclose its availability altogether should those circumstances
present themselves.
Accordingly, in Kentucky, for a litigant to have third-party standing to
assert the constitutional rights of another in order to obtain relief for himself or
be applied unconstitutionally to others in other situations not before the Court.
However, there is an exception with respect to statutes restricting First Amendment
rights. That is because of a judicial prediction or assumption that the statute's very
existence may cause others not before the court to refrain from constitutionally
protected speech or expression.”).
65 653 S.W.3d 48, 52 (Ky. 2022) (“Kentucky courts recognize the prohibition
against generalized grievances. In Sexton, we explained that the prohibition against
generalized grievances was one of ‘two major federal prudential standing principles.’
Even before Sexton both this Court and the Kentucky Court of Appeals recognized the
prohibition against generalized grievances as part of our standing jurisprudence.”).
21
herself, the litigant must demonstrate: (1) an injury in fact that gives the
litigant a sufficiently concrete interest in the outcome of the dispute; (2) a close
relationship between the litigant and the non-party individual or individuals
whose rights the litigant seeks to assert; and (3) that there exists a genuine
obstacle or hindrance to the possessor of the right’s ability to assert his or her
own interest.
With the foregoing in mind we now address, first, whether the abortion
providers have first-party, constitutional standing to challenge the bans on
their own behalf, and second, whether the abortion providers have third-party
standing to challenge the bans on behalf of their patients.
1) The abortion providers have first-party, constitutional standing to
challenge the trigger ban but they do not have constitutional
standing to challenge the heartbeat ban.
As stated, to establish constitutional standing, a litigant bears the
burden of proving injury, causation, and redressability.66
To establish the first element, an injury in fact, the injury alleged must
be “concrete, particularized, and actual or imminent.”67 “For an injury to be
particularized, it must affect the plaintiff in a personal and individual way.
This means the plaintiff personally has suffered some actual or threatened
injury. For an injury to be concrete, it must actually exist.”68
66 Sexton, 566 S.W.3d at 196.
67 Overstreet, 603 S.W.3d at 252.
68 Id. (internal quotation marks omitted).
22
The only injury that the abortion providers alleged in their complaint that
was personal to them was that the threat of criminal penalties from the trigger
ban forced them to turn away patients seeking abortions. This, in turn, would
naturally result in the abortion providers suffering an economic detriment to
their businesses. Such a financial harm is a sufficient injury for first-party
standing purposes. For instance, in Sexton, we reasoned that the plaintiff had
not suffered a sufficient injury in fact to confer constitutional standing, in part,
because she had suffered no financial harm and “[was] not financially
interested in any way whatsoever in the outcome of [the] dispute.”69 Here, the
abortion providers have already suffered economic harm and have a financial
interest in the outcome of this dispute. Their alleged injury is accordingly
concrete and particularized, thus satisfying the first element of constitutional
standing.
As for causation, the abortion providers argued that the trigger ban
forced them to cease all abortion services, as it prohibits all abortions unless
such a procedure is necessary to save the life of the mother. The injury alleged
is therefore fairly traceable to the defendant’s alleged unlawful conduct70 and
the causation requirement is met.
Regarding the final prong, redressability, the abortion providers made
four arguments against the trigger ban that were not specific to their patients’
rights, namely: that it was an unconstitutional delegation of legislative
69 Sexton, 566 S.W.3d at 197.
70 Id. at 193.
23
authority; that it became effective upon the authority of an entity other than
the General Assembly; that it violated the abortion providers’ right to due
process by imposing criminal penalties while being unconstitutionally vague as
to when it became effective; and that it was unconstitutionally unintelligible
because it did not intelligibly define when it became effective.
At the outset, we hold that the abortion providers’ latter two arguments
are now moot. “[A] moot case is one which seeks to get a judgment . . . upon
some matter which, when rendered, for any reason, cannot have any practical
legal effect upon a then existing controversy.”71 The trigger ban states in
relevant part that it “shall become effective immediately upon . . . Any decision
of the U.S. Supreme Court which reverses, in whole or in part, Roe v. Wade[.]”72
Under U.S. Supreme Court Rule 45, “[i]n a case on review from a state court,
the mandate issues 25 days after entry of the judgment[.]”73 The abortion
providers argued that the trigger ban was both unconstitutionally vague and
unintelligible because it did not specify whether it would become enforceable
on June 24, 2022, when the U.S. Supreme Court entered the judgment in
Dobbs, or twenty-five days later on July 19, 2022, when the mandate issued.
As of the rendition of this opinion, we are now well-past both of those dates
and the trigger ban would be in effect either way, assuming it withstands the
challenges against it. The issues concerning when the trigger ban would go
71 See, e.g., Morgan v. Getter, 441 S.W.3d 94, 98-99 (Ky. 2014).
72 KRS 311.772(2)(a).
73 U.S. Sup. Ct. R. 45(2).
24
into effect are therefore moot and cannot support the abortion providers
assertion of constitutional standing, as no redressability regarding those issues
is available.
Nevertheless, the abortion providers’ arguments that the trigger ban
improperly delegates legislative authority and that becomes effective on the
authority of an entity other than the General Assembly remain live issues. If
the abortion providers were to receive a favorable ruling on those issues, the
statute would be invalidated if the offending enactment provision could not be
severed.74 This in turn would provide the abortion providers with the relief
they seek, satisfying the redressability prong of constitutional standing.
However, although the abortion providers have constitutional standing to
challenge the trigger ban on the foregoing two grounds, they made no
arguments concerning their own rights in relation to the heartbeat ban. Their
only assertion against the heartbeat ban was that it violated their patients’
constitutional rights to privacy and self-determination. For the reasons
delineated in Part II(A)(2) of this Opinion, the abortion providers do not have
third-party standing to assert the constitutional rights of their patients. They
therefore have presented no arguments against the heartbeat ban that this
Court can address to provide them relief leaving the redressability prong of
constitutional standing unsatisfied as to the heartbeat ban.
74 See KRS 446.090.
25
Accordingly, we hold that the abortion providers have first-party,
constitutional standing to challenge the trigger ban, but they lack such
standing to challenge the heartbeat ban.
2) The abortion providers do not have third-party standing to challenge
the trigger ban or the heartbeat ban on behalf of their patients.
We must next determine whether the abortion providers have third-party
standing to challenge the bans by asserting the constitutional rights of their
patients. On that front, we reiterate that to overcome the general prohibition
against third-party standing, the abortion providers bore the burden of proving
that they suffered an injury in fact giving them a sufficiently concrete interest
in the outcome of this dispute; that they have a close relationship with the
persons who possess the right to be asserted; and that there is some hindrance
or genuine obstacle to those persons asserting that right themselves.
The abortion providers argue that, prior to Dobbs, the U.S. Supreme
Court frequently permitted abortion providers to invoke the rights of their
actual or potential patients in challenges to abortion-related state statutes.
They further contend that they have a close relationship to the patients whose
rights they wish to assert because their patients’ ability to access abortion is
inextricably bound with the abortion providers’ ability to engage in the conduct
prohibited under the statute. This alignment of interests, they argue, satisfies
the close relationship prong. The abortion providers also argue that their
patients face a genuine hindrance: the understandable fear of stigmatization if
information about their choice to receive an abortion did not remain private.
26
The Attorney General argues that the abortion providers do not have
third-party standing. While he acknowledges that the U.S. Supreme Court has
historically implemented a special carveout in its own jus tertii jurisprudence in
cases involving abortion providers attempting to assert the rights of their
patients, he contends that practice was recently discredited by the U.S.
Supreme Court in Dobbs. The Attorney General further argues that although
the circuit court cited the proper test for determining third-party standing, it
did not engage in an actual analysis of its requirements. If it had, he contends,
it could not have found that the abortion providers have third-party standing.
For the reasons that follow, we agree.
In Dobbs, the U.S. Supreme Court held that the U.S. Constitution does
not contain a right to abortion and gave the ability to regulate abortions back
to the individual states. In doing so, the Court considered, inter alia, whether
stare decisis required continued acceptance of its abortion rights precedents
Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey75.
Generally, when the U.S. Supreme Court addresses an argument of whether to
follow stare decisis, its “test” is to address a number of factors that it considers
most relevant in a given case.76 The Dobbs Court held that “five factors
75 505 U.S. 833 (1992), overruled by Dobbs v. Jackson Women's Health Org., 213
L. Ed. 2d 545, 142 S. Ct. 2228 (2022).
76 See, e.g., Ramos v. Louisiana, 206 L. Ed. 2d 583, 140 S. Ct. 1390, 1414
(2020) (“The stare decisis factors identified by the Court in its past cases include: the
quality of the precedent's reasoning; the precedent's consistency and coherence with
previous or subsequent decisions; changed law since the prior decision; changed facts
since the prior decision; the workability of the precedent; the reliance interests of
those who have relied on the precedent; and the age of the precedent.”); Janus v. Am.
Fed’n of State, Cty., and Mun. Emps., Council 31, 201 L. Ed. 2d 924, 138 S. Ct. 2448,
27
[weighed] strongly in favor overruling Roe and Casey: the nature of their error,
the quality of their reasoning, the ‘workability’ of the rules they imposed on the
country, their disruptive effect on other areas of the law, and the absence
of concrete reliance.”77
The Court then discussed why each of the foregoing factors supported its
decision to reject stare decisis.78 As to the fourth factor cited, the abortion
precedents’ “disruptive effect on other areas of the law,” the Dobbs Court
explained:
Roe and Casey have led to the distortion of many important but
unrelated legal doctrines, and that effect provides further support
for overruling those decisions.
Members of this Court have repeatedly lamented that no legal rule
or doctrine is safe from ad hoc nullification by this Court when an
occasion for its application arises in a case involving state
regulation of abortion. [Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747, 814, 106 S. Ct.
2169, 2206, 90 L. Ed. 2d 779 (1986) (O'Connor, J., dissenting)];
see Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785, 114
S.Ct. 2516, 129 L.Ed.2d 593 (1994) (Scalia, J., concurring in
judgment in part and dissenting in part); [Whole Woman's Health v.
Hellerstedt, 579 U.S. 582, 631-633, 136 S. Ct. 2292 (2016)(THOMAS, J., dissenting)]; id., at 645–666, 678–684, 136 S.Ct.
2292 (ALITO, J., dissenting); June Medical, 591 U.S., at –––– – ––––,
140 S.Ct., at 2171-2179 (GORSUCH, J., dissenting).
The Court's abortion cases have diluted the strict standard for
facial constitutional challenges. They have ignored the Court's
third-party standing doctrine. They have disregarded standard
2478 (2018) (“Our cases identify factors that should be taken into account in deciding
whether to overrule a past decision. Five of these are most important here: the quality
of [the precedent’s] reasoning, the workability of the rule it established, its consistency
with other related decisions, developments since the decision was handed down, and
reliance on the decision.”).
77 Dobbs, 142 S. Ct. at 2265 (emphasis added).
78 Id. at 2265-78.
28
res judicata principles. They have flouted the ordinary rules on the
severability of unconstitutional provisions, as well as the rule that
statutes should be read where possible to avoid
unconstitutionality. And they have distorted First Amendment
doctrines.
When vindicating a doctrinal innovation requires courts to
engineer exceptions to longstanding background rules, the doctrine
has failed to deliver the principled and intelligible development of
the law that stare decisis purports to secure.79
In the case before us, the circuit court found that the Dobbs Court’s
statement that its “abortion cases . . . have ignored the Court’s third-party
standing doctrine” was merely dicta and therefore not binding. But yet the
U.S. Supreme Court clearly expressed that its abortion jurisprudence’s
misapplication of its third-party standing doctrine was significant enough to
cite as one of the reasons why fifty years of abortion precedent should no
longer be followed. And in doing so the Court specifically acknowledged that
its previous practice of granting abortion providers third-party standing on
behalf of their patients to challenge state abortion statutes was a
misapplication of its third-party standing doctrine. Following its statement
regarding its misapplication of third-party standing, the Dobbs Court cited two
cases, June Medical and Whole Woman’s Health, in which abortion providers
were permitted to challenge a state abortion statute on behalf of their
patients.80 This Court can therefore not so easily disregard the U.S. Supreme
Court’s denouncement of permitting abortion providers third-party standing in
79Id. at 2275-76 (internal citations, quotation marks, and footnotes omitted)
(emphasis added).
80 Id. at 2275 n. 61.
29
cases such as the one now before us. And, after thorough review, we
respectfully agree that its rebuke was proper.
The best example of the jus tertii exception being improperly applied by
the U.S. Supreme Court in an abortion case is Singleton, supra. In Singleton, a
plurality opinion that was sharply divided on the issue of third-party standing,
two Missouri-licensed physicians filed suit to challenge a Missouri statute that
prevented Medicaid from paying for abortions that were not “medically
indicated.”81 In addressing whether the physicians could challenge the statue
on behalf of their patients who were not named in the suit, the Court first held
that the close relationship prong of jus tertii was satisfied based on its
reasoning that a woman cannot safely receive an abortion without a physician,
that an indigent woman cannot easily secure an abortion without
reimbursement to her physician from the state, and that a woman’s physician
is “intimately involved” in her abortion decision.82 With regard to the genuine
obstacle or hindrance requirement, it held:
As to the woman's assertion of her own rights, there are several
obstacles. For one thing, she may be chilled from such assertion
by a desire to protect the very privacy of her decision from the
publicity of a court suit. A second obstacle is the imminent
mootness, at least in the technical sense, of any individual
woman's claim. Only a few months, at the most, after the
maturing of the decision to undergo an abortion, her right thereto
will have been irrevocably lost, assuming, as it seems fair to
assume, that unless the impecunious woman can establish
Medicaid eligibility she must forgo abortion. It is true that these
obstacles are not insurmountable. Suit may be brought under
a pseudonym, as so frequently has been done. A woman who
81 Singleton, 428 U.S. at 108.
82 Id. at 117.
30
is no longer pregnant may nonetheless retain the right to
litigate the point because it is “‘capable of repetition yet
evading review.’” Roe v. Wade, 410 U.S., at 124-125, 93 S.Ct. at
713. And it may be that a class could be assembled, whose fluid
membership always included some women with live claims.83
Based on this contradictory reasoning, the Court held that it was “generally . . .
appropriate to allow a physician to assert the rights of women patients as
against governmental interference with the abortion decision[.]”84
In this way, the Singleton plurality effectively stated that there were
genuine obstacles to a woman seeking an abortion to challenge the statute
herself—anonymity and imminent mootness—but then, in the same paragraph,
acknowledged that they were not genuine obstacles at all. This glaring
inconsistency was lambasted by Justice Powell in his concurring in part and
dissenting in part opinion. He argued:
on the plurality's own statement of this principle and on its own
discussion of the facts, the litigation of third-party rights cannot be
justified in this case. The plurality virtually concedes, as it must,
that the two alleged “obstacles” to the women's assertion of their
rights are chimerical. Our docket regularly contains cases in
which women, using pseudonyms, challenge statutes that allegedly
infringe their right to exercise the abortion decision. Nor is there
basis for the “obstacle” of incipient mootness when the plurality
itself quotes from the portion of Roe v. Wade, 410 U.S. 113, 124-
125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973), that shows no such
obstacle exists. In short, in light of experience which we share
regularly in reviewing appeals and petitions for certiorari, the
“obstacles” identified by the plurality as justifying departure from
the general rule simply are not significant.85
83 Id. (emphasis added).
84 Id. at 118.
85 Id. at 126-27 (Powell, J., dissenting).
31
The Singleton plurality’s reasoning is further discredited when it is
compared to a case wherein the jus tertii doctrine, in particular the genuine
hindrance prong, was correctly applied. For example, in Kowalski, the Court
addressed whether two defense attorneys could challenge a Michigan statute
which prohibited the appointment of appellate counsel for indigent defendants
who plead guilty.86 The Court first held that the attorneys had failed to
demonstrate a requisitely close relationship, as they had only alleged harm to
future, hypothetical clients.87 Next, regarding the hindrance or genuine
obstacle prong, the Court said:
The attorneys argue that, without counsel, these avenues are
effectively foreclosed to indigents. They claim that
unsophisticated, pro se criminal defendants could not satisfy the
necessary procedural requirements, and, if they did, they would be
unable to coherently advance the substance of their constitutional
claim.
That hypothesis, however, was disproved in the Michigan courts,
see, e.g., People v. Jackson, 463 Mich. 949, 620 N.W.2d 528 (2001)
(pro se defendant sought leave to appeal denial of appointment of
appellate counsel to the Michigan Court of Appeals and the
Michigan Supreme Court); People v. Jackson, 463 Mich. 949, 620
N.W.2d 528 (2001) (same), and this Court, see Pet. for Cert. in
Halbert v. Michigan, O.T.2004, No. 03–10198 (pending request for
writ of certiorari by a pro se defendant challenging the denial of
appellate counsel). While we agree that an attorney would be
valuable to a criminal defendant challenging the constitutionality
of the scheme, we do not think that the lack of an attorney here is
the type of hindrance necessary to allow another to assert the
indigent defendants' rights.88
86 Kowalski, 543 U.S. at 127-28.
87 Id. at 130-31.
88 Id. at 132. We acknowledge that the Kowalski Court was also clearly
displeased with the attorneys in the case for attempting to circumvent state
proceedings by filing in federal court. See id. at 132-33.
32
Thus, in Kowalski, the Court held that the fact that indigent defendants
can, and have, challenged statutes in state and federal court without the
assistance of counsel dispositively demonstrated that there was no genuine
obstacle or hindrance to such defendants challenging the Michigan statute on
their own behalf. But the same principles did not apply in Singleton. In
Singleton, the plurality acknowledged that women can, and have, challenged
abortion statutes pseudonymously, and that pregnancy is an explicit exception
to mootness under the “capable of repetition, yet evading review” doctrine. Yet
it still held that there were genuine obstacles preventing the women who
possessed the right to abortion from challenging the statute on their own
behalf. This kind of inconsistency and improper application was exactly what
the Dobbs Court was referring to when it said that its abortion cases “have
ignored the Court’s third-party standing doctrine.”89
As mentioned, the Dobbs Court provided support for this criticism by
citing to the dissents in Whole Woman's Health and June Medical.90 In both
cases, as in Singleton, the dissenting opinions discussed the glaring
misapplication of the jus tertii doctrine in cases involving abortion providers
seeking to assert the constitutional right of their patients.
In Whole Woman’s Health, Justice Thomas dissented to emphasize, inter
alia, “the Court’s habit of applying different [third-party standing] rules to
89 Dobbs, 142 S. Ct. at 2275.
90 Id. at 2275 n. 61.
33
different constitutional rights—especially the putative right to abortion.”91
Justice Thomas pointed out that the very existence of the suit was “a
jurisprudential oddity” made possible by the Court’s repeated allowance of
“abortion clinics and physicians to invoke a putative constitutional right that
does not belong to them—a woman’s right to abortion.”92
In June Medical, the statute at issue required any physician who
performed abortions to have admitting privileges at a hospital within 30 miles
of where an abortion was performed or induced.93 Justice Alito’s dissent
focused on the fact that the case featured “a blatant conflict of interest between
an abortion provider and its patients.”94 He reasoned that the statute was
enacted with a mind to protect the health and safety of women who opt to
receive an abortion, but “an abortion provider has a financial interest in
avoiding [such] burdensome regulations” as “[a]pplying for privileges takes time
and energy, and maintaining privileges may impose additional burdens.”95 The
dissent contended that allowing the abortion providers to assert the rights of
its patients when such a conflict may exist was in clear contradiction to Elk
Grove Unified School District v. Newdow,96 wherein the Court held that third-
party standing was not appropriate when there is a potential conflict of interest
91 Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting).
92 Id. at 2321-22.
93 June Med., 140 S. Ct. at 2113.
94 Id. at 2166.
95 Id.96 542 U.S. 1 (2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014).
34
between the plaintiff and the third party.97 In Elk Grove, a father who was an
atheist alleged that his daughter had a constitutional right not to hear others
recite the words “under God” during her public school’s daily recitation of the
Pledge of Allegiance.98 The child’s mother alleged that the child had no
objection to hearing or reciting the Pledge.99 The Court held that the father
lacked prudential standing because “the interests of [the] parent and [the] child
[were] not parallel and, indeed, are potentially in conflict.”100
In addition, Justice Alito contended that the record demonstrated that
the abortion providers had not shown that the jus tertii requirements were
met.101 He asserted that there was no close relationship between the abortion
physicians and their patients because the evidence demonstrated their
consultations were fleeting and the procedures required little to no follow up.102
Concerning the “hindrance” prong, Justice Alito reiterated the arguments
espoused in the Singleton dissent as recounted above.103
Notwithstanding the foregoing, the abortion providers ask this Court to
hold that they have satisfied the requirements for third-party standing based
on U.S. Supreme Court precedents that have been strongly, and rightfully,
97 June Med., 140 S. Ct. at 2167.
98 Elk Grove, 542 U.S. at 4-5.
99 Id.100 Id. at 15.
101 June Med., 140 S. Ct. at 2168.
102 Id.103 Id. at 2168-69.
35
discredited. This we cannot do, and based on the following, we hold that the
abortion providers did not carry their burden to demonstrate that third-party
standing is warranted in this case.
The abortion providers have suffered an injury in fact for the reasons
discussed in Part II(A)(1) of this Opinion. But, even if the abortion providers
are correct that they have a requisitely close relationship with their patients,
which is difficult to discern based on the record before us, they have not shown
that there is a hinderance or genuine obstacle to their patients challenging the
trigger ban and heartbeat ban on their own behalf.
The abortion providers allege that the genuine hindrance requirement is
met because their patients fear that their decision to receive an abortion will
become public, even if they sue pseudonymously. However, they have provided
no argument as to why their patients would be unable to challenge the bans
pseudonymously, nor have they explained why a court order would be
insufficient to ensure their patients’ identities remain protected. It is also
worth noting that our jurisprudence contains an example of a class of plaintiffs
suing pseudonymously in order to protect highly sensitive information. In Doe
v. Potter, a class of anonymous plaintiffs filed a class action suit against the
Roman Catholic Diocese of Covington and its Bishop for the sexual abuse they
endured as children by priests and other Diocese employees.104 There is no
reason that this Court can discern that would prevent women seeking to
104 225 S.W.3d 395, 397 (Ky. App. 2006).
36
challenge the trigger ban and heartbeat ban from proceeding anonymously, as
has been done before in cases such as Roe v. Wade. Accordingly, there is no
genuine hindrance to them asserting their own constitutional rights, and the
jus tertii requirements are not satisfied.
There are additional considerations that caution against allowing third-
party standing in this case that warrant brief discussion. As Justice Alito
argued in his June Medical dissent, there appears to be a conflict of interest
between the abortion providers and their patients under the statutes at issue.
As Justice Keller warns in her opinion, the statutes might create a situation
wherein a physician has a gravely ill pregnant patient, but because of the
threat of criminal and civil penalties under the bans, the physician may
hesitate in rendering life-saving treatment to the pregnant patient or altogether
fail to render that treatment. And, under the heartbeat ban, a woman may sue
a physician that performs or induces an abortion upon her in violation of that
statute.105 Consequently, the abortion providers’ interest in not being civilly or
criminally prosecuted under the statutes appears to potentially conflict with a
pregnant woman’s interest in receiving adequate medical care. Permitting the
abortion providers to proceed with third-party standing would accordingly
violate Elk Grove’s holding that third-party standing is improper when the
plaintiff’s interests are potentially in conflict with the third party’s interests.
105 KRS 311.7709(2).
37
In addition, we must be mindful of not allowing bad facts to make bad
law and an unworkable precedent. To permit third-party standing under these
facts would, in essence, render the genuine hindrance requirement
meaningless. In turn, this could result in increased instances of third-party
standing being permitted in other cases when there is meant to be a very
strong presumption against it.
Based on the foregoing, we cannot hold that the abortion providers in
this case have demonstrated that granting them third-party standing to assert
the rights of their patients is appropriate. We are acutely aware that abortion
is perhaps the most polarizing and difficult issue we face as members of this
Court, this Commonwealth, and this country. But we must honor separation
of powers and act only when the constitution permits. This Court finds itself in
the exceedingly rare position of being able to learn from a mistake in applying
the law that our esteemed brothers and sisters on the U.S. Supreme Court
have openly acknowledged making. To perpetuate that mistake in our own
courts by creating a special exception for third-party standing in Kentucky
cases involving abortion would “deliver neither predictability nor the promise of
a judiciary bound by law,”106 and we therefore decline to do so.
B. The circuit court abused its discretion by granting the abortion
providers’ motion for a temporary injunction.
To summarize, the abortion providers lack third-party standing to
challenge either of the bans on behalf of their patients, and they lack first-party
106 Whole Woman’s Health, 136 S. Ct. at 2321 (Thomas, J., dissenting).
38
standing to challenge the heartbeat ban. However, they have first-party
standing to challenge the trigger ban on the grounds that it was an
unconstitutional delegation of the General Assembly’s legislative power and
became effective upon the authority of an entity other than the General
Assembly. Accordingly, we must address whether the circuit court’s grant of a
temporary injunction on those grounds was appropriate.
Appellate courts review a trial court’s grant or denial of a temporary
injunction for abuse of discretion.107 A trial court abuses its discretion when
its decision “was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.”108 Here, if the circuit court abused its discretion in granting
the temporary injunction, we must grant the Attorney General’s motion for
interlocutory relief, and vice versa.109
The well-established standards for demonstrating entitlement to
injunctive relief under CR 65.04110 are as follows:
[f]irst, the trial court should determine whether plaintiff has
complied with CR 65.04 by showing irreparable injury. This is a
mandatory prerequisite to the issuance of any injunction.
Secondly, the trial court should weigh the various equities
involved. Although not an exclusive list, the court should consider
such things as possible detriment to the public interest, harm to
107 Maupin, 575 S.W.2d at 698.
108 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
See Boone Creek Props., LLC v. Lexington-Fayette Urban Cty. Bd. of
109
Adjustment, 442 S.W.3d 36, 41 (Ky. 2014).
110 CR 65.04(1) (“A temporary injunction may be granted during the pendency of
an action on motion if it is clearly shown by verified complaint, affidavit, or other
evidence that the movant's rights are being or will be violated by an adverse party and
the movant will suffer immediate and irreparable injury, loss, or damage pending a
final judgment in the action, or the acts of the adverse party will tend to render such
final judgment ineffectual.”).
39
the defendant, and whether the injunction will merely preserve the
status quo. Finally, the complaint should be evaluated to see
whether a substantial question has been presented. If the party
requesting relief has shown a probability of irreparable injury,
presented a substantial question as to the merits, and the equities
are in favor of issuance, the temporary injunction should be
awarded.111
The underlying purpose behind these requirements “is to insure that the
injunction issues only where absolutely necessary to preserve a party's rights
pending the trial of the merits.”112 “Notably, a motion for a temporary
injunction does not call for, or justify, an adjudication of the ultimate rights of
the parties . . . and should issue only where it is clearly shown that one's
rights will suffer immediate and irreparable injury pending trial.”113
As to the threshold showing, irreparable injury, a party must “allege
possible abrogation of a concrete personal right.”114 The circuit court found
that a likelihood of irreparable harm was present based on the following:
waiting for final judgment on the issues presented here, without
injunctive relief, would be effectively meaningless to many people
because they would either be past gestational age restrictions or
would have been forced to carry their pregnancy to term.
Therefore, the [abortion providers] have demonstrated they would
suffer irreparable harm if injunctive relief is not provided.
Thus, by its very language, the circuit court’s finding of irreparable injury was
based on the lack of access to abortion suffered by the abortion providers’
111 Maupin, 575 S.W.2d at 699.
112 Id. at 698.
Cameron v. Beshear, 628 S.W.3d 61, 71–72 (Ky. 2021) (internal quotation
113
marks and citations omitted).
114 Maupin, 575 S.W.2d at 698 (emphasis added).
40
patients. But, for the reasons articulated in Section II(A)(2) of this Opinion, the
abortion providers did not have third-party standing to challenge the trigger
ban based upon alleged violations of their patients’ constitutional rights.
Accordingly, the circuit court abused its discretion by finding that the
irreparable harm requirement was satisfied, as it did not find that “the
[abortion providers’] rights are being or will be violated . . . and the [abortion
providers] will suffer immediate and irreparable injury, loss, or damage pending
a final judgment in the action[.]”115 Further, the personal harm asserted by the
abortion providers, the harm to their business, is not considered an irreparable
injury for the purposes issuing a temporary injunction.116
The circuit court also erred when balancing the equities involved. When
addressing this element, the circuit court altogether failed to consider the
presumption that all statutes passed by our General Assembly, regardless of
their subject matter, “were enacted by the legislature in accordance with
constitutional requirements.”117 “It is uncontroverted that a statute is
presumed to be constitutional unless it clearly offends the limitations and
prohibitions of the Constitution.”118 In that vein, in addressing harm to the
115 CR 65.04(1).
116 Norsworthy v. Kentucky Bd. of Med. Licensure, 330 S.W.3d 58, 62 (Ky. 2009)
(“In order to obtain a preliminary injunction, the harm that would result in the
absence of the injunction must be irreparable, not merely substantial. Further, mere
injuries, however substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough.”).
117Cameron, 628 S.W.3d at 73 (quoting Beshear v. Acree, 615 S.W.3d 780, 805
(Ky. 2020)).
118 See, e.g., Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000).
41
public interest, the circuit court failed to contemplate that “[c]onsidering that
the General Assembly is the policy-making body for the Commonwealth, not
the Governor or the courts, equitable considerations support enforcing a
legislative body’s policy choices. In fact, non-enforcement of a duly-enacted
statute constitutes irreparable harm to the public and the government.”119 The
presumption that statutes are constitutionally passed represents a respect for
the General Assembly’s authority that the judiciary, as its co-equal branch,
must recognize. The circuit court accordingly further abused its discretion by
failing to start from the presumption that the bans were constitutionally
enacted when balancing the equities, and the Court of Appeals was correct in
holding that the temporary injunction was improperly entered.
To be clear, this opinion does not in any way determine whether the
Kentucky Constitution protects or does not protect the right to receive an
abortion, as no appropriate party to raise that issue is before us. Nothing in
this opinion shall be construed to prevent an appropriate party from filing suit
at a later date.
III. CONCLUSION
Based on the foregoing, the circuit court abused its discretion by
granting the abortion providers’ motion for a temporary injunction against both
the trigger ban and the heartbeat ban. Accordingly, we must affirm the Court
of Appeals’ grant of interlocutory relief to the Attorney General. The abortion
119 Cameron, 628 S.W.3d at 73 (citing Boone Creek, 442 S.W.3d at 40)).
42
providers do not have third-party standing to challenge the trigger ban or the
heartbeat ban on the grounds that those statutes violated their patients’
constitutional rights, and they do not have first-party, constitutional standing
to challenge the heartbeat ban. However, the abortion providers have first-
party constitutional standing to challenge the trigger ban. This matter is
accordingly remanded to the circuit court for the determination of the first-
party constitutional claims of the abortion providers as to the trigger ban.
Specifically, whether the trigger ban was an unlawful delegation of legislative
authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution
and if the trigger ban became effective upon the authority of an entity other
than the General Assembly in violation of Section 60 of the Kentucky
Constitution.
All sitting. Conley, J. concurs. VanMeter, C.J., concurs in result only.
Bisig, J., concurs in part and dissents in part by separate opinion in which
Keller, J., joins. Keller, J., concurs in part and dissents in part by separate
opinion in which Bisig, J., joins. Nickell, J., concurs in part and dissents in
part by separate opinion. Thompson, J., concurs in part and dissents in part
by separate opinion.
***
BISIG, J., CONCURRING IN PART, DISSENTING IN PART:
While acknowledging that the citizens of our Commonwealth have strong
and deeply-held opinions on both sides of the underlying issue—and indeed
even likely have loved ones with differing views—the task currently before the
43
Court is whether the trial court may properly consider, under current law, the
constitutional claims of those challenging the impact of the Heartbeat Ban and
Trigger Ban (hereinafter “Bans”). Today, a majority of this Court retreats from
the duty of judicial review by failing to evaluate whether Plaintiffs present
substantial allegations that the Bans unconstitutionally prohibit the women of
this Commonwealth from obtaining reproductive healthcare.
In so doing, the majority’s decision permits the criminal prosecution of
persons who assist incest and rape victims in terminating a resulting
unwanted pregnancy. It fails to reject the untenable assertion of the Attorney
General that the appropriate “status quo” is the 1879 case of Mitchell v.
Commonwealth, 78 Ky. 204, rendered at a time when women were wholly
barred from participating in government, the political process, or the making of
laws for the Commonwealth. And the decision allows enforcement of the Bans
despite its own express acknowledgement that those statutes may “create a
situation wherein a physician has a gravely ill pregnant patient, but because of
the threat of criminal and civil penalties under the bans, the physician may
hesitate in rendering life-saving treatment to the pregnant patient or altogether
fail to render that treatment.” (Emphasis added).
Make no mistake: in concluding—despite decades of well-settled
jurisprudence to the contrary—that Plaintiffs lack third-party standing to
assert the rights of their patients, the majority declines its responsibility to
ensure the citizens of this Commonwealth are not left without a forum to
address substantial allegations of constitutional infirmity:
44
The judiciary has the ultimate power, and the duty, to apply, interpret,
define, construe all words, phrases, sentences and sections of the
Kentucky Constitution as necessitated by the controversies before it. It
is solely the function of the judiciary to so do. This duty must be
exercised even when such action serves as a check on the activities of
another branch of government or when the court’s view of the
constitution is contrary to that of other branches, or even that of the
public.
Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989).
This Court wrote these sage words more than thirty years ago when, as
here, it faced a question regarding the constitutionality of acts by the General
Assembly. These words were not some hollow, passing utterance. They were
this Court’s solemn recognition of its role under our tripartite form of
government to act, on a limited basis when necessary, as a check and balance
against allegedly unconstitutional acts by the General Assembly.
The majority decision is premised on a misapplication of non-controlling
statements in federal caselaw, fails to acknowledge the significant hurdles
faced by citizens seeking to enforce their claimed constitutional rights in a
court of law, and argues alleged conflicts of interest between patients and
reproductive healthcare providers where none exist. It fails to reach the full
merits of the trial court’s issuance of a temporary injunction and allows the
trial court on remand to proceed only with a limited hearing that will leave
Plaintiffs’ substantial allegations of constitutional infirmity unaddressed.120
120 As discussed in further detail below, Plaintiffs’ alleged lack of third-party
standing may be cured by moving to add a patient as a plaintiff to their case. Should
that occur, the trial court would of course be free to consider the constitutional rights
of that patient as well as those of the current Plaintiffs.
45
Put simply, the decision removes a forum for a balancing of the two important
competing interests at issue in this case—the state’s interest in the protection
of unborn life and a woman’s interest in bodily autonomy and self-
determination.
Thus, while I concur with the majority’s conclusion that Plaintiffs have
first-party standing to challenge the Trigger Ban and with their recognition of
third-party standing for purposes of Kentucky law, I respectfully dissent from
the remainder of their Opinion. I would reverse the Court of Appeals, affirm
the trial court, and direct reinstatement of the temporary injunction.
I. The Trial Court Did Not Abuse Its Discretion In Granting
Emergency Legal Relief.
Though a discussion of standing typically—and logically—precedes the
analysis of other matters relevant to an appeal, I recognize the importance of
the constitutional issues raised in this case to all citizens of the
Commonwealth. I therefore reserve my discussion of standing, see infra Part II,
and begin by noting that I would find the trial court did not err in granting
temporary injunctive relief pending a final judicial determination on the merits.
In determining whether temporary injunctive relief is warranted, a trial
court should first consider whether the movant has alleged and proven facts
from which the court can reasonably infer the movant will suffer irreparable
harm absent injunctive relief. Maupin v. Stansbury, 575 S.W.2d 695, 698-99
(Ky. App. 1978), as modified (Oct. 13, 1978). Such a showing “is a mandatory
prerequisite to the issuance of any injunction.” Id. at 699. Second, the trial
court should weigh the equities, including by considering whether injunctive
46
relief would cause any possible detriment to the public interest or harm to the
other parties, and whether injunctive relief would merely preserve the status
quo. Id. Third, the trial court should consider whether the movant’s claims
present “a substantial question.” Id.Injunctive relief is “an extraordinary remedy . . . addressed to the sound
discretion of the trial court.” Id. at 697-98. As such, we disturb a trial court’s
determination as to temporary injunctive relief only for clear abuse of that
discretion. Commonwealth of Kentucky, ex rel. Conway v. Thompson, 300S.W.3d 152, 162 (Ky. 2009), as corrected (Jan. 4, 2010). Where, as here, a
party seeks interlocutory relief from the granting of a temporary injunction, it
bears an “enormous burden” to demonstrate that such relief was an abuse of
discretion. Cameron v. Beshear, 628 S.W.3d 61, 71-72 (Ky. 2021).
A. Irreparable Harm: Plaintiffs Face Injuries That Cannot Be Undone.
I conclude the trial court did not err in finding that Plaintiffs have shown
“a probability of irreparable injury.” Id. As an initial matter, I recognize that
the purpose of the Bans is the state’s interest in the protection of unborn life.
That interest is undeniably strong.
However, the General Assembly may not act unconstitutionally, even in
furtherance of unquestionably strong interests. When the General Assembly
passes an unconstitutional statute, such a statute “is no law at all.” Harrod v.
Whaley, 239 S.W.2d 480, 482 (Ky. 1951). The government’s inability to enforce
such a statute occasions no harm to the public but rather protects the public’s
interest in legislation consistent with constitutional protections and limitations.
47
Thus, while we generally presume that non-enforcement of
constitutionally sound statutes results in irreparable harm to the government
and the public, we must also be careful not to apply that presumption so
liberally as to abdicate our responsibility to safeguard the constitutional rights
of the citizens of this Commonwealth. Where a plaintiff alleges the General
Assembly has passed a statute that violates our Constitution, the judiciary
must “uphold[] our duty faithfully to interpret the Kentucky Constitution.”
Legis. Rsch. Comm’n v. Fischer, 366 S.W.3d 905, 911 (Ky. 2012). And where
the plaintiff’s constitutional claim is ultimately determined to have merit, “‘[i]t
is within the province and power of the courts to declare void and ineffective for
any purpose all [A]cts of the General Assembly in violation of an express
provision of the Constitution.’” Id. at 918-19. Indeed, “[i]t is our sworn duty”
to decide duly presented questions regarding the interpretation of our
Kentucky Constitution. Rose, 790 S.W.2d at 209. “The duty of the judiciary in
Kentucky was so determined when the citizens of Kentucky enacted the social
compact called the Constitution and in it provided for the existence of a third
equal branch of government, the judiciary.” Id.
Indeed, the application of an unyielding presumption that the acts of the
General Assembly are constitutional and should be enforced would leave
Kentuckians with little or no ability to obtain relief from unconstitutional
statutes. It cannot be that no duly-enacted statute could ever be challenged.
See id. (“To allow the General Assembly (or, in point of fact, the Executive) to
decide whether its actions are constitutional is literally unthinkable.”)
48
(Emphasis added). As such, when faced with a substantial claim that a statute
violates our Constitution, we should engage in a more searching inquiry to
determine whether the allegations of constitutional infirmity are sufficiently
serious to overcome our presumption that non-enforcement of the provision
will irreparably harm the government.
As discussed in further detail below, Plaintiffs here raise a substantial
question as to the constitutionality of the Bans. Indeed, their concerns have
sufficient gravity that they may not be classified as wholly “doubtful.” Thus,
though mindful of the general presumption that non-enforcement of a duly-
enacted law results in irreparable harm, I proceed also to consider irreparable
harm faced by other parties.
I conclude that the trial court did not abuse its discretion in finding that
Plaintiffs will suffer irreparable harm absent injunctive relief. The trial court’s
factual determination regarding irreparable harm is binding upon us unless
clearly erroneous. Boone Creek Props., LLC v. Lexington-Fayette Urban Cnty.
Bd. of Adjustment, 442 S.W.3d 36, 39-40 (Ky. 2014) (“The trial court’s factual
determination that irreparable harm would occur in the absence of an
injunction was not clearly erroneous and so is binding upon this Court in our
review of [movant’s] challenge to the injunction.”). That is, we are bound to
accept that finding so long as it is supported by “‘[e]vidence that a reasonable
mind would accept as adequate to support a conclusion’ and evidence that,
when ‘taken alone or in the light of all the evidence, . . . has sufficient probative
value to induce conviction in the minds of reasonable men.’” Moore v. Asente,
49
110 S.W.3d 336, 354 (Ky. 2003). This is so even if there is conflicting evidence,
if we disagree as to the weight of the evidence, if we might have reached a
contrary finding, or whether we doubt the correctness of the finding. Id.The trial court based its conclusion on competent testimony by Plaintiffs’
expert Dr. Bergin that Plaintiffs cancelled appointments for more than 200
patients following the Bans coming into effect. The trial court also cited
testimony that pregnant women face increasing medical harm and risks from
the loss of these appointments.121 The trial court further noted that ultimate
judicial relief following a trial would effectively be meaningless given the
passage of time, gestational age restrictions, and the typical length of human
gestation. In other words, the trial court received competent testimony that
with enforcement of the Bans, pregnant women now face a growing risk of
pregnancy-related harms and risks that grow with time and against which a
final judgment might offer no meaningful relief.
As noted above, the majority itself acknowledges that the statutes may
create a situation wherein a physician has a gravely ill
pregnant patient, but because of the threat of criminal and
civil penalties under the bans, the physician may hesitate in
rendering life-saving treatment to the pregnant patient or
altogether fail to render that treatment.
121 As discussed in further detail below, I conclude Plaintiffs have third-party
standing. I therefore would find no error in the trial court’s consideration of patient
rights and harms suffered by them.
50
If the Bans’ result of causing physicians to withhold “life-saving
treatment” from patients—the obvious result of which is death of the
patient—is not irreparable harm, what is?
We need not merely speculate as to the pragmatic effect these Bans
have on healthcare providers tasked with treating pregnant patients.
Just last week the Lexington Herald Leader detailed the experiences of
two women placed in untenable positions due to severe fetal anomalies
and the extremely limited healthcare options available.122 In both
situations, the women experienced unequivocally nonviable pregnancies
and their healthcare providers advised their babies would live for hours
or days, at best. Healthcare providers informed the women that they
could not provide appropriate reproductive healthcare because of
Kentucky law. These real-world examples demonstrate how the Bans
undoubtedly impact both healthcare providers and patients in concrete
ways.123
122Alex Acquisto, A ‘twisted’ experience: How KY’s abortion bans are depriving
pregnant patients of health care, LEXINGTON HERALD LEADER (Feb. 10, 2023),
https://www.kentucky.com/news/politics-government/article271925592.html.
123 One woman was able to obtain relief while the temporary injunction was in
place, allowing her to receive an abortion at EMW Women’s Surgical Center. Of
course, that relief is currently unavailable given the majority’s holding. The other
woman was left with no options, other than to carry her son to term, deliver him, and
watch him undergo palliative care, where he would live for minutes, maybe hours.
The woman sought care out of state, opting to drive nearly 400 miles to Illinois where
she was induced at 21 weeks’ gestation and gave birth to her son, whose heart beat for
approximately two minutes before it stopped. Distressingly, many Kentuckians do not
possess the financial resources or means to travel and obtain care out-of-state.
51
Yet the majority fails to enjoin the Bans even temporarily pending
a trial as to the merits of the Plaintiffs’ substantial allegations of
unconstitutionality. I would hold that the record here contains evidence
sufficient to support the trial court’s finding of irreparable harm.
I further pause to note that although the trial court’s findings alone are
sufficient to support its conclusion, the extremely limited medical emergency
exceptions and the lack of any exception for rape or incest in the Bans also
demonstrates an additional—and profoundly grave—risk of irreparable harm.
Indeed, it cannot reasonably be disputed that a woman who is forced against
her will to carry a pregnancy to term following rape or incest faces not merely
“irreparable harm,” but an overwhelming, devastating, and tragic injury that
can never be remedied. Thus—and again although the trial court’s findings
alone were sufficient—I readily conclude that the Bans’ limited medical
emergency exceptions and lack of exceptions for rape or incest likewise
indisputably satisfy the requirement of irreparable harm.
B. Balancing Of The Equities: The Temporary Injunction Is In The
Public Interest And Preserves The Status Quo.
I would also conclude that the trial court did not abuse its discretion in
finding that a balancing of the equities, including consideration of detriment to
the public interest, harm to the defendants, and preservation of the status quo,
favors injunctive relief. See Maupin, 575 S.W.2d at 699. Admittedly, equity
generally weighs in favor of enforcing the duly-enacted statutes of the General
Assembly given that body’s unique role in establishing the public policy of our
Commonwealth. Cameron, 628 S.W.3d at 73. Indeed, the General Assembly’s
52
enactment of a statute entails an “‘implied finding’ that the public will be
harmed if the statute is not enforced.” Id. at 78. We thus generally defer to the
General Assembly’s expertise in setting public policy and recognize equity’s
strong preference for enforcement of duly-enacted and constitutionally sound
statutes.
This preference must be tempered when we are faced with a substantial
allegation that an act of the General Assembly violates the protections and
limitations of our Constitution. While a trial court generally should not
“substitute[] its view of the public interest for that expressed by the General
Assembly,” id., when presented with a serious allegation of constitutional
infirmity it should engage in a more searching inquiry as to whether
enforcement of the challenged statute pending a final determination on the
merits would serve the public interest.
Here, while the trial court appropriately considered the potential harm
delayed enforcement would occasion upon the government, it likewise
appropriately weighed that injury against harm occasioned upon Plaintiffs and
the public by enforcement of the Bans before a final determination as to their
constitutionality. In finding that such enforcement would be contrary to the
public interest, the trial court relied on testimony by Plaintiffs’ expert Dr. Lindo
that it would cause economic harm to Kentuckians, particularly “poorer and
disadvantaged members of society.” The trial court also relied on Dr. Lindo’s
testimony regarding the educational and professional harms enforcement of the
Bans would cause to the pregnant women of the Commonwealth. The trial
53
court acknowledged the harm of delayed enforcement faced by the government,
but ultimately concluded that harm was outweighed by the economic,
educational, and professional harms identified by Plaintiffs. I cannot conclude
the trial court’s weighing of these harms was a clear abuse of discretion, and
therefore would leave that finding undisturbed. Thompson, 300 S.W.2d at 162
(“[A]n appellate court may not disturb a trial court’s decision on a temporary
injunction unless the trial court’s decision is a clear abuse of discretion.”).
Likewise, I would find no error in the trial court’s conclusion that
temporary injunctive relief would merely preserve the status quo. As the trial
court noted, the Bans altered the regulatory scheme for reproductive
healthcare that had existed in Kentucky for more than fifty years. It simply
cannot be legitimately argued that this Court should return to a status quo in
1879 when women had no legal right to participate in their government.
C. Substantial Question: Plaintiffs Present A Plausible Legal Claim
Of Profound Significance To All Kentuckians.
Finally, a party seeking temporary injunctive relief must also “present a
substantial question as to the merits of [its] Complaint.” Cameron, 628 S.W.3d
at 72. Where, as here, there is a probability of irreparable injury and the
equities favor injunctive relief, “it is sufficient if the complaint raises a serious
question warranting a trial on the merits.” Maupin, 575 S.W.2d at 699. I
would find that the trial court did not abuse its discretion in concluding that
Plaintiffs’ claims satisfy this standard.
Plaintiffs’ claim that access to reproductive healthcare falls within our
Constitution’s protection of the rights to safety and self-determination is
54
entirely plausible, particularly given the evidence received by the trial court
regarding the numerous and increasing health risks faced by women during
the course of a pregnancy. See KY. CONST. § 1; Woods v. Commonwealth of
Kentucky, Cabinet for Hum. Res., 142 S.W.3d 24, 43 (Ky. 2004) (noting the
“constitutional right of self-determination”). These rights are implicated in
perhaps even greater measure by the limitations on the Bans’ medical
emergency exceptions and the Bans’ lack of any exception for cases of rape or
incest. The issue of access to reproductive healthcare also presents the
question of the extent to which each individual is afforded bodily autonomy
under our Constitution. See Commonwealth v. Campbell, 133 Ky. 50, 117 S.W.
383, 386 (1909) (“‘Over [her]self, over [her] own body and mind, the individual
is sovereign.’”) (quoting John Stuart Mill, On Liberty 22, 23). Plaintiffs’ claims
also raise important questions regarding family planning and whether the Bans
impermissibly exceed the scope of appropriate governmental involvement in
such matters. Similarly, the historical background can be used to argue that
Kentucky traditionally did not criminalize at least pre-quickening abortions.
Plaintiffs’ assertions of vagueness and violation of delegation principles likewise
raise valid questions.
Plaintiffs have presented a “serious question” as to the merits of their
claims. Plaintiffs’ claims present not only “serious questions,” but ones of
profound significance to Kentuckians on all sides of this issue. Indeed, few
issues in our society are so hotly disputed and universally debated as the legal
55
landscape regarding the governmental interest in protecting fetal life and
reproductive freedom rights.
Though Plaintiffs’ claims are not certain to prevail, neither are they so
lacking in merit as to be characterized as “doubtful.” Defendants have not
pointed the trial court or this Court to any dispositive authority holding that
the Kentucky Constitution does not limit restrictions on access to reproductive
healthcare. Kentuckians recently declined to incorporate into our Constitution
an explicit answer to that thorny question, leaving it to us in our role as
interpreters of the Constitution to determine the issue. The judiciary is remiss
for refusing to do so.
II. Standing: Plaintiffs Have The Legal Ability To Bring Their
Claims.
Kentucky courts lack constitutional jurisdiction to adjudicate matters in
which the plaintiff lacks standing. Commonwealth v. Bredhold, 599 S.W.3d
409, 414 (Ky. 2020). In Commonwealth, Cabinet for Health & Family Services,
Department for Medicaid Services v. Sexton ex rel. Appalachian Regional
Healthcare, 566 S.W.3d 185, 188 (Ky. 2018), this Court “adopt[ed] the United
States Supreme Court’s test for standing as espoused in Lujan v. Defenders of
Wildlife.” (Footnote omitted.) Lujan, 504 U.S. 555, 560-61 (1992), enumerates
three requirements to establish constitutional standing: injury, causation, and
redressability. Generally, the doctrine of standing is intended to ensure that
courts “do not address non-existent issues or provide advisory opinions.”
Bredhold, 599 S.W.3d at 417 (citing Sexton, 566 S.W.3d at 192-97). I would
find that Plaintiffs have both first-party and third-party standing.
56
A. First-Party Standing: Plaintiffs Can Pursue Claims On Their Own
Behalf.
Plaintiffs meet the requirements for first-party standing. All are abortion
providers and, indeed, EMW’s primary business is the provision of abortion
services. Prior to the Bans, Plaintiffs offered abortion services under license
from the Commonwealth of Kentucky but when the Bans went into effect
Plaintiffs were forced to cease all abortion services or face criminal
prosecution. The resulting economic damage from compliance with the Bans is
sufficient injury in fact to confer standing on Plaintiffs themselves to bring this
challenge. The economic injury is real and present and its cause is
indisputably the Bans. This litigation can redress Plaintiffs’ injury if their legal
claims are sustained, thus satisfying all three requirements for standing under
Sexton. Accordingly, no possibility exists that, by addressing the issues raised
by these litigants who were forced to discontinue providing abortion services,
the Court would consider a “non-existent issue” or render an “advisory
opinion.” Bredhold, 599 S.W.3d at 417.
B. Third-Party Standing: Plaintiffs Can Pursue Claims On Behalf Of
Their Patients.
Plaintiffs also brought suit on behalf of their staff and their patients,
thereby invoking third-party standing. I concur with the majority’s recognition
today that for purposes of Kentucky law, a litigant has third-party standing to
assert claims on behalf of parties not actually before the court if the litigant
demonstrates “(1) an injury in fact that gives the litigant a sufficiently concrete
interest in the outcome of the dispute; (2) a close relationship between the
57
litigant and the non-party individual or individuals whose rights the litigant
seeks to assert; and (3) that there exists a genuine obstacle or hindrance to the
possessor of the right’s ability to assert his or her own interest.”
Historically, this logic has been applied to abortion providers to find that
they have third-party standing to assert the rights of their patients. Planned
Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 (1976). As recently as
2020, the United States Supreme Court recognized that federal courts “have
long permitted abortion providers to invoke the rights of their actual or
potential patients in challenges to abortion-related regulations.” June Med.
Servs. LLC v. Russo, 140 S. Ct. 2103, 2118 (2020) (citing Danforth, 428 U.S. at
62; Doe v. Bolton, 410 U.S. 179, 188-89 (1973); and seven other United States
Supreme Court cases rendered over the preceding forty-seven years recognizing
abortion providers had standing to invoke patients’ rights).
The majority spends significant time discussing whether Dobbs refuted
these well-established rules regarding third-party standing. Perhaps most
obviously, Dobbs is a non-controlling federal case applying federal law. In
addition, the majority is simply wrong in any event that Dobbs did away with
years of federal caselaw finding that reproductive healthcare providers have
third-party standing. Standing was not even an issue in the Dobbs case, a
challenge to Mississippi’s statute banning abortion after fifteen-weeks’
gestation brought by Jackson Women’s Health Organization, the state’s sole
abortion facility, and one of its physician-providers. Addressing generally the
effects of Roe v. Wade, and the Court’s prior precedent recognizing the right to
58
abortion, the majority opinion made a single, isolated comment on standing:
“[The Court’s abortion cases] have ignored the Court’s third-party standing
doctrine.” Dobbs, 142 S. Ct. at 2275. The Dobbs majority did not elaborate on
this passing comment nor did it seize the opportunity right before it to dismiss
the case on standing grounds if it intended to change almost fifty years of
standing precedent. To the contrary, the Dobbs Court proceeded to render a
decision on the merits, even though the respondents in that case did not
include any women who sought an abortion, rather than dismiss for lack of
standing. See Petition for Writ of Certiorari, Dobbs v. Jackson Women’s Health
Org., No. 19-1392, 2020 WL 3317135, at *ii (June 15, 2020) (identifying
respondents as clinic “on behalf of itself and its patients” and doctor “on behalf
of herself and her patients”). In short, nothing in Dobbs undermines the
decades of court precedent, including the United States Supreme Court’s
recently-decided June Medical Services LLC, recognizing the third-party
standing of abortion providers to represent the interests of their patients. So to
the extent the majority concludes Dobbs forecloses a finding that Plaintiffs have
third-party standing, it is both an incorrect reading of Dobbs as well as an
unnecessary reliance on non-controlling federal caselaw.
The majority also errs in finding that patients seeking reproductive
healthcare face no hindrance to their ability to enforce their constitutional
rights. Quite simply, the majority fails to acknowledge the overwhelming
expense and legal knowledge necessary to challenge the constitutionality of
legislation in our courts of law. It cannot reasonably be questioned that the
59
overwhelming majority of Kentucky citizens lack the financial resources or legal
knowledge to mount such a challenge on their own. Moreover, women affected
are keenly aware of the Bans’ impact and are engaged in the issue. When
considered together rather than separately, the personal and financial costs
faced by these third parties unquestionably rise to a level of hindrance
sufficient to find Plaintiffs have third-party standing. In addition, it cannot
reasonably be questioned that reproductive healthcare providers have a close
relationship with their patients and have suffered injury in fact sufficient to
have a concrete interest in the outcome of this case. The three elements of
third-party standing, i.e. injury, a close relationship, and hindrance, are all
present.
I also disagree with the majority’s conclusion that a conflict of interest
exists between Plaintiffs and their patients, much less a conflict sufficient to
prevent third-party standing. The majority contends such a conflict arises
because Plaintiffs face criminal and civil sanctions for providing the care their
patients seek. However the true interest of the Plaintiffs, as made plain by the
present case, is to provide reproductive healthcare. This interest aligns
perfectly with patients’ interest in receiving that healthcare. Thus, I would find
that Plaintiffs have third-party standing.
As the majority appears to acknowledge, Plaintiffs in any event may
easily remedy the alleged lack of third-party standing by moving the trial court
to add an appropriate patient as a Plaintiff in their action. I also urge the trial
court to engage in an expedited process to hear and consider this case on
60
remand. As this case has progressed through the court system, we were first
asked to consider whether the trial court appropriately granted a preliminary
injunction and whether the Court of Appeals appropriately prohibited
enforcement of the injunction, but before we could reach that issue had to
resolve the issue of standing. Due to the standing issue, the resolution of the
underlying case on the merits has been delayed. Now that this Court has
acted, and the majority opinion has upheld first-party standing for the
Plaintiffs and rejected their third-party standing claims, it is my hope that the
trial court moves with all due haste.
To avoid counterproductive and largely duplicative additional suits, it
would be appropriate for the trial court to allow women with first party
standing to join in this litigation if requested. It is consistent with good public
policy to shepherd a single consolidated case on these issues to a speedy
resolution. See generally Wenk v. Ruby, 412 S.W.2d 247, 249 (Ky. 1967)
(observing that “piecemeal litigation is contrary to the policy of the courts.”);
Ball v. Middlesboro Coca-Cola Bottling Works, Inc., 266 Ky. 364, 99 S.W.2d 205,
206 (1936) (recognizing that the public policy behind the doctrine of “law of the
case” is based on the understanding that “litigation should be ended as
speedily as is consistent with an orderly administration of justice”). Doing so
will be much more efficient than requiring these women to file their own
action(s) and to have multiple appeals in multiple actions.
Ultimately, the questions as to whether the Bans are constitutional are
likely to make their way back to our Court. That process should happen as
61
quickly and completely as possible so that our review can then clarify the law
in Kentucky for our citizens. As the majority expressly acknowledges, their
Opinion “does not in any way determine whether the Kentucky Constitution
protects or does not protect the right to receive an abortion.” Thus, in the
interim the majority Opinion in this case should not be used in the courts of
this Commonwealth for the proposition that such a right is or is not
constitutionally protected.
CONCLUSION
I concur with the majority’s conclusion that Plaintiffs have first-party
standing to challenge the Trigger Ban and with their recognition of third-party
standing for purposes of Kentucky law. For the foregoing reasons, I
respectfully dissent from the remainder of their Opinion. I would reverse the
Court of Appeals, affirm the trial court, and direct reinstatement of the
temporary injunction.
Keller, J., joins.
***
KELLER, J., CONCURRING IN PART AND DISSENTING IN PART: I
concur with the Majority’s holding that the physicians have first-party standing
to assert their claims in the case at bar. However, I dissent from the remainder
of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I
also believe that the physicians have third-party standing to assert the claims
of their patients and that the trial court did not abuse its discretion in granting
the temporary injunction. I write separately to emphasize that EMW presented
62
a substantial question on the merits based on illusory exceptions to these
bans.
The very first section of the Bill of Rights of our Commonwealth’s
Constitution states as follows:
All men are, by nature, free and equal, and have certain inherent
and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the
dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and
opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for
their common good, and of applying to those invested with the
power of government for redress of grievances or other proper
purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the
State, subject to the power of the General Assembly to enact laws
to prevent persons from carrying concealed weapons.
KY. CONST. § 1 (emphasis added). The rights enumerated in this section are
those that the Framers of our state’s Constitution held most dear. The third of
these is our citizens’ “inherent and inalienable right[] . . . of seeking and
pursuing their safety and happiness.” Id. This right is held in the same regard
as our other fundamental and essential rights such as the rights to liberty, to
worship, to freedom of speech, to property, to assembly, and to bear arms.
Thus, it must be protected as fervently as we protect those other rights.
63
As I opined in my separate opinion denying emergency interlocutory relief
in this case,
Members of the judiciary, and in fact all human beings, are often
called upon to weigh competing interests. Rarely, however, are we
tasked with weighing interests that are as heavy and as important
as those at stake in the case at bar. The interests on both sides of
this debate are compelling and bear on the health and welfare of
all Kentuckians.
EMW Women’s Surgical Center, P.S.C. v. Cameron, No. 2022-SC-0326-I, 2022
WL 3641196, at *2 (Ky. Aug. 18, 2022) (Keller, J., concurring in result only).
My statement is just as true today as it was six months ago.
It is the duty of our Court and our Court alone to interpret our
Commonwealth’s Constitution. It is our North Star. This Court has often held
that our state constitution provides “protection of individual rights greater than
the federal floor.” Commonwealth v. Wasson, 842 S.W.2d 487, 497 (Ky. 1992),
overruled on other grounds by Calloway Cnty. Sheriff’s Dept. v. Woodall, 607
S.W.3d 557 (Ky. 2020). We have explained, “Both the record of the 1890–91
debates and the opinions of Justices of this Court who were the
contemporaries of our founding fathers express protection of individual
liberties significantly greater than the selective list of rights addressed by the
Federal Bill of Rights.” Id. at 494. We have done so in numerous contexts,
including the protection against double jeopardy,124 the right of
124 Ingram v. Commonwealth, 801 S.W.2d 321 (Ky. 1990), overruled on other
grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996).
64
confrontation,125 the fundamental right to an education,126 and the right to
hybrid representation.127 The same is true in the case at bar.
Therefore, I discuss at length the ways in which the constitutional rights
of our citizens are threatened by the statutes at issue herein. After doing so, I
briefly underscore additional harms suffered by physicians and the medical
field which are not discussed within the Majority’s Opinion.
EMW PRESENTED A SUBSTANTIAL QUESTION ON THE MERITS OF ITS
CLAIMS.
I rely on Justice Bisig’s opinion for its explanation of the standard of
review of temporary injunctive relief. I also rely on her discussion of the three
requirements for injunctive relief from Maupin v. Stansbury, 575 S.W.2d 695,
699 (Ky. App. 1978). Because my opinion focuses on a pregnant patient’s
constitutional rights to medical self-determination and to the pursuit of safety,
it is primarily concerned with the third element of the Maupin test: whether a
substantial question exists on the merits. Id. Thus, I focus my analysis on that
element.
The Constitutional rights at stake in this case are at the heart of the
substantial question analysis. Those rights are fundamental rights, and
statutes that infringe on fundamental rights are subject to a strict scrutiny
analysis. Under such an analysis, it is clear that the trial court did not abuse
125Dean v. Commonwealth, 777 S.W.2d 900 (Ky. 1989), overruled on other
grounds by Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003).
126 Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).
127 Baucom v. Commonwealth, 134 S.W.3d 591 (Ky. 2004).
65
its discretion in finding that EMW met its burden to show a substantial
question on the merits as to both statutes at issue.
As already noted, the rights to medical self-determination and the
pursuit of safety are enshrined in our state Constitution, although they are not
found in the United States Constitution. Encompassed within the right to
“enjoying and defending” our liberty is the right to self-determination. The right
to self-determination, and specifically self-determination regarding medical
decisions, was recognized as a common law right in DeGrella ex rel. Parrent v.
Elston, 858 S.W.2d 698 (Ky. 1993). In that case, we explained, “No right is held
more sacred, or is more carefully guarded, by the common law, than the right
of every individual to the possession and control of his own person, free from
all restraint or interference of other, unless by clear and unquestionable
authority of law.” Id. at 703 (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S.
250, 251 (1891)). We went on to quote with approval celebrated jurist Judge
Benjamin Cardozo, who wrote, “Every human being of adult years and sound
mind has a right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s consent commits an
assault, for which he is liable in damages.” Id. (quoting Schloendorff v. Soc’y of
N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914)). Finally, we noted that this same right
was recognized by our predecessor Court in 1951 when it held that “the patient
. . . had the right to decide whether she wished to undergo or refuse [a] medical
procedure unless an immediate life-threatening emergency made it impractical
66
for the surgeon to obtain . . . consent.” Id. (citing Tabor v. Scobee, 254 S.W.2d
474, 475–76 (Ky. 1951)).
Although we declined in DeGrella to determine whether the common law
right to medical self-determination was protected by our state constitution, we
made that determination in Woods v. Commonwealth, 142 S.W.3d 24 (Ky.
2004). In Woods, we noted that the right to forego medical treatment
derives from the common law rights of self-determination and
informed consent . . .; and in the liberty interest protected by the
Fourteenth Amendment to the United States Constitution . . .; and,
perhaps even more so, by Section 1 of the Constitution of
Kentucky (“All men are, by nature, free and equal, and have
certain inherent and inalienable rights, among which may be
reckoned: First: The right to enjoying and defending their lives and
liberties.”).
Id. at 32. We acknowledged that the right to forego medical treatment “is not
absolute” and that “[t]he individual’s liberty interest must be balanced against
relevant state interests.” Id. (citing Cruzan by Cruzan v. Dir., Mo. Dep’t of
Health, 497 U.S. 261, 279 (1990)). However, it is clear from Woods that the
right to medical self-determination is a right protected by our state’s
constitutional right to “enjoy[] and defend[] [our] lives and liberties.” Id.This Court has rendered few opinions regarding the right to self-
determination and none on the pursuit of safety. Nevertheless, they permeate
every aspect of our culture and livelihood as Kentuckians. Our ability to do for
ourselves what must be done to preserve our life and safety take root in our
strong belief in basic principles like self-defense, informed consent, and more
commonly in our daily struggles for independence from control. The fact that
67
these rights have gone largely unquestioned for so long points not to our
refusal of them, but rather to how pervasive they are.
Because the six-week ban and trigger law (“the statutes,” collectively)
both implicate these fundamental constitutional rights, they must pass strict
scrutiny.128 D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003). “To survive strict
scrutiny, the government must prove that the challenged action furthers a
compelling governmental interest and is narrowly tailored to that
interest.” Beshear v. Acree, 615 S.W.3d 780, 816 (Ky. 2020) (citations
omitted); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). The
state’s interest is in protecting life, as seen through the Legislature’s naming of
the trigger law “The Human Life Protection Act,” as well as the clear definition
of this interest within the text of the six-week ban.129 Today, I acknowledge that
interest as compelling. Whether the statutes at issue are narrowly tailored to
that interest so that they do not infringe too greatly on a woman’s rights to self-
determination and to pursue safety, however, requires a deeper analysis.
The statutes at issue attempt to serve the state’s interest by protecting
fetal life at all stages of gestation. The statutes are broader in effect, however.
Because the statutes lack meaningful exceptions or distinctions to protect the
128The Circuit Court only conducted a strict scrutiny analysis on the six-week
ban. That court had already determined that the trigger law raised substantial
questions not requiring a strict scrutiny analysis. However, EMW argues on appeal
that the circuit court’s ruling on self-determination applies equally to the trigger law.
129“The Commonwealth of Kentucky has legitimate interests from the outset of
the pregnancy in protecting the health of the woman and the life of an unborn human
individual who may be born.” KRS 311.7702(7).
68
life of the mother, they likely fail to be narrowly tailored to protecting life. In
fact, in some instances, the effect of the statutes is to harm life.
The harmful overbreadth of the statutes stems directly from their impact
on a pregnant woman’s medical treatment. As discussed in an amicus brief to
this Court by the American College of Obstetricians and Gynecologists, et al.,
“the Bans are . . . without any valid medical justification,” and so jeopardize
“the health and safety of pregnant Kentuckians and plac[e] extreme burdens
and risks upon providers of essential reproductive health care.”130 There are
many significant and varied risks associated with being pregnant, as testified
to by Dr. Ashlee Bergin, an assistant professor at the University of Louisville
School of Medicine in the Department of Obstetrics, Gynecology, and Women’s
Health. At the hearing on the temporary injunction in this case, Dr. Bergin
testified that pregnant patients are at a higher risk for anemia, fatal blood
clotting,131 and high blood pressure. Studies show that an increasing number
of pregnant patients in the United States have chronic health conditions such
as hypertension, diabetes, and chronic heart disease. These conditions put a
patient at higher risk of complications during pregnancy and in the year
postpartum.132
130Brief of American College of Obstetricians and Gynecologists, American
Medical Association, American Academy of Family Physicians, American College of
Physicians, and Society for Maternal-Fetal Medicine as Amicus Curiae Supporting
Appellees at 3, Daniel Cameron v. EMW Women’s Surgical Center, P.S.C., et al.
131 Clots can move into the lungs and are sometimes fatal. If blood clots develop
in the arteries, patients are at risk for having a heart attack or stroke.
132 Pregnancy Mortality Surveillance System, CTRS. FOR DISEASE CONTROL &
PREVENTION (June 22, 2022),
69
Pregnancy also exacerbates pre-existing conditions, according to Dr.
Bergin’s testimony. If a patient who already has an underlying heart condition
becomes pregnant, she is at increased risk for complications to occur during
pregnancy. A third of patients with asthma may experience worsening of their
condition during pregnancy which could worsen to the point where the patient
needs to be admitted to the hospital. Pregnant patients with chronic kidney
disease are at a higher risk of kidney failure, requiring dialysis during
pregnancy or after delivery. Many other pre-existing conditions can be
exacerbated by pregnancy including sickle cell disease, lupus, other collagen
vascular diseases, substance use disorder, infectious diseases such as HIV or
hepatitis, or even epilepsy. Some pre-existing conditions such as diabetes make
life-threatening pregnancy issues like pre-eclampsia133 more likely.
The process of childbirth also presents risks. The trial court heard
testimony regarding these dangers. If a patient’s water breaks before it is safe
to deliver the baby, she is at increased risk of infection and sepsis. Such
patients are also at risk for the placenta to separate from the wall of the uterus,
causing bleeding and, potentially, fetal demise. Additional risks stemming from
https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-
mortality-surveillance-
system.htm?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Freproductivehealth%
2Fmaternalinfanthealth%2Fpregnancy-mortality-surveillance-system.htm.
133 Dr. Bergin elaborated that pre-eclampsia puts pregnant patients at risk for
having seizures or stroke. It also puts patients at risk for retaining fluid on the lungs,
making it difficult for patients to maintain their oxygen saturation and can put
patients at risk for complications with their liver and renal function. See also What are
the risks of preeclampsia & eclampsia to the mother?, NIH: EUNICE KENNEDY SHRIVER
NAT’L INST. OF CHILD HEALTH & HUMAN DEVELOPMENT (Nov. 19, 2018),
https://www.nichd.nih.gov/health/topics/preeclampsia/conditioninfo/risk-mother.
70
labor and delivery include long term problems with bowel and bladder function,
hemorrhage, peripartum cardiomyopathy (from which some people never
recover), and postpartum depression.
More women die from pregnancy-related complications in the U.S. than
in any other developed country.134 The Centers for Disease Control and
Prevention reports that nearly 700 women die each year in the U.S. from
pregnancy or delivery complications.135 In Kentucky, in 2018, the pregnancy-
related mortality rate was 16.6 deaths per 100,000 live births.136 For Black
women specifically, the pregnancy-related mortality rate was 40.2 deaths per
100,000 live births.137 Almost half of the pregnancy-related deaths in the
United States are reported to be caused by hemorrhage, cardiovascular and
coronary conditions, cardiomyopathy, or infection.138 In Kentucky, pregnancy-
related mortality will rise due to the practical effects of the statutes in question.
The complications and consequences of pregnancy are borne not only by
those consenting to sexual activity. According to the Federal Bureau of
134 Maternal mortality in the United States is double that of France, the
developed nation with the second-highest rate. Roosa Tikkanen et al., Maternal
Mortality and Maternity Care in the United States Compared to 10 Other Developed
Countries, COMM. FUND (Nov. 2020), https://doi.org/10.26099/411v-9255.
135 Maternal Mortality, CTRS. FOR DISEASE CONTROL & PREVENTION (Sept. 16,
2022), https://www.cdc.gov/reproductivehealth/maternal-
mortality/index.html#:~:text=The%20death%20of%20a%20woman,of%20pregnancy%
20or%20delivery%20complications.
136 KENTUCKY DEP’T FOR PUB. HEALTH, DIV. OF MATERNAL & CHILD HEALTH, Public
Health Maternal Mortality Review – Annual Report 2021,
(https://www.chfs.ky.gov/agencies/dph/dmch/Documents/MMRAnnualReport.pdf).
137 Id. at 11.
138 Pregnancy Related Deaths, CTRS. FOR DISEASE CONTROL & PREVENTION (May
14, 2019), https://www.cdc.gov/vitalsigns/maternal-deaths/index.html.
71
Investigation Crime Data Explorer,139 in Kentucky in 2021, there were 1,634
reported rape offenses. Of these, 642 of the victims were between the ages of 10
and 19.140 Startlingly, 169 of the victims were nine years old or younger.141
Even rape against individuals so young can result in pregnancy: Tragically, in
2021, one of the abortions performed in Kentucky was on a 9-year-old child.
Given our criminal statutes, that pregnancy could only have been the result of
a rape.142
Eight hundred eleven, or almost exactly half of the victims of reported
rape offenses, were individuals aged 19 years or younger. At least some of these
victims will become pregnant and will face the same associated risks not
because of a choice that they made, but instead because of a heinous crime
that was perpetrated against them. The statutes at issue do not even include
an exception for victims of rape or incest. These young girls will be denied their
constitutional rights to self-determination and the pursuit of safety.143 Female
children will be carrying pregnancies to term, despite any consequences.
139FEDERAL BUREAU OF INVESTIGATION CRIME DATA REPORTER, https://crime-
data-explorer.fr.cloud.gov/pages/explorer/crime/crime-trend (last visited Dec. 15,
2022).
140 Id.
141 Id.
142 Al Cross, With no exceptions for rape or incest, Kentucky’s near-total abortion
ban can force children as young as 9 to deliver a baby, KY. HEALTH NEWS (Sept. 9,
2022), https://ci.uky.edu/kentuckyhealthnews/2022/09/09/with-no-exceptions-for-
rape-or-incest-kentuckys-near-total-abortion-ban-can-force-children-as-young-as-9-
to-deliver-a-baby/.
143 It is likely that the medical consequences and health risks of pregnancy will
be even more numerous and more severe for young girls than they are for adult
women. However, a sufficient record about these differences was not developed at the
trial court, and I cannot assume such is true for the purposes of this analysis.
72
It is estimated that more than 80% of pregnancy-related deaths are
preventable, given proper medical attention.144 Accordingly, just as with any
other life-threatening or severely life-altering situation in medicine, maternal
care should require consultation and collaboration between the physician and
the patient at risk. Under the statutes as-written, however, collaboration with a
pregnant patient is impossible in potentially life threatening or severely life-
altering situations. As I elaborate below, the statutes arguably strip a pregnant
patient of her rights to self-determination and pursuit of safety, and in so
doing, are not narrowly tailored to the interest of protecting human life.
The Attorney General (AG) argued that the Legislature avoided this
problem by crafting exceptions to the restrictions on abortions for the life of the
mother. The exceptions, however, are ignorant of the realities of pregnancy. I
begin by addressing the most restrictive statute at issue.
The Human Life Protection Act (the trigger law) prohibits anyone from
causing fetal death by way of the administration, prescription, or sale of drugs
or by instrumental procedures. KRS 311.772(3)(a). Of note, the trigger law
defines two exceptions to this blanket prohibition:
(4) The following shall not be a violation of subsection (3) of this
section:
(a) For a licensed physician to perform a medical procedure
necessary in reasonable medical judgment to prevent the death or
substantial risk of death due to a physical condition, or to prevent
the serious, permanent impairment of a life-sustaining organ of a
pregnant woman. However, the physician shall make reasonable
144Four in 5 pregnancy-related deaths in the U.S. are preventable, CTRS. FOR
DISEASE CONTROL & PREVENTION (Sept. 19, 2022),
https://www.cdc.gov/media/releases/2022/p0919-pregnancy-related-deaths.html.
73
medical efforts under the circumstances to preserve both the life of
the mother and the life of the unborn human being in a manner
consistent with reasonable medical practice; or
(b) Medical treatment provided to the mother by a licensed
physician which results in the accidental or unintentional injury or
death to the unborn human being.
KRS 311.772(4). At first blush, these exceptions seem meaningful. They are,
however, empty. At the very least, even if these exceptions work in life-
threatening circumstances, they still put all medical decisions and the power to
pursue the pregnant patient’s safety solely in the hands of the physician; the
patient will play no part. In any other medical setting, a competent non-
pregnant person, man, woman, and even child (in the absence of a parent or
guardian), in a state of medical distress may collaborate with physicians to
direct their treatment. However, a woman in a state of pregnancy has no right
to direct her treatment even when life and death are on the line.
The statutes at issue today strip a pregnant patient’s right to determine
the course of her healthcare and treatment by criminalizing a medical
procedure sometimes necessary to save the life of the woman. As a
constitutional matter, the statutes’ exceptions do not save them from scrutiny:
Even the exceptions to the statutes arguably strip a pregnant patient of her
constitutional rights.
These exceptions do not save the trigger law from violating its own intent
to protect life. Instead, they show how broadly tailored the trigger law is to the
Legislature’s purpose. The trigger law cannot be narrowly tailored to the state’s
interest in preserving life if it is so broad as to work against that interest. I
74
acknowledge the extremely difficult task of balancing the interests in
preserving maternal versus fetal life.
I further acknowledge the role the Legislature rightfully plays in drafting
laws regarding these issues on behalf of their constituents. However, the
exceptions threaten life by taking healthcare decisions out of the hands of both
women and medical professionals and putting life-saving decisions into the
hands of the AG. The danger of doing so is demonstrated in real life medical
scenarios playing out across the Commonwealth.
For example, an extremely ill pregnant person presents for treatment,
and upon examination, a physician determines that the woman is in shock
from sepsis, meaning that an infection has reached her bloodstream. Sepsis is
“a major cause for the admission of pregnant women to the intensive care unit
and is one of the leading causes of maternal morbidity and mortality.”145 Septic
shock has a mortality range of 40%–70%.146
The physician in our example may not know exactly when the patient
became septic, and because of this, the physician may have anywhere from
mere minutes to hours to save the pregnant woman. Maternal sepsis can lead
145 Shang-Rong Fan et al., New Concept and Management for Sepsis in
Pregnancy and the Puerperium, 2 MATERNAL FETAL MED. 231, 231 (Oct. 2020),
https://journals.lww.com/mfm/fulltext/2020/10000/new_concept_and_management
_for_sepsis_in_pregnancy.7.aspx.
146 Id.
75
to tragic outcomes for the fetus as well.147 If the infection is severe, even
treatment of the mother’s sepsis may not prevent these outcomes.
Members of the American Medical Association (AMA) discussed such an
impact at the association’s November 2022 interim meeting.148 In his address,
AMA President Dr. Jack Resneck recounted “stories about patients with ectopic
pregnancies, sepsis, or bleeding after incomplete miscarriages, or cancers
during pregnancy” being denied help by fearful physicians.149 Poignantly, he
lamented,
I never imagined colleagues would find themselves tracking down
hospital attorneys before performing urgent abortions, when
minutes count, asking if a 30 percent chance of maternal death or
impending renal failure meet the criteria for a state’s exemptions or
whether they must wait a while, a while longer, until their
pregnant patient gets even sicker.150
Not only is this antithetical to the physician’s Hippocratic Oath,151 but it also
violates long-established obstetric and gynecologic standards of medical care.
147 Maternal sepsis can lead to “(1) preterm premature rupture of membranes or
preterm labor or birth, (2) cerebral white matter damage or cerebral palsy or
neurodevelopmental delay, (3) stillbirth, (4) early- or late-onset sepsis [for the fetus
itself], and (5) perinatal death.” Id.
148Dr. Jack Resneck, President, Am. Med. Ass’n, Address of the President to the
House of Delegates (November 12, 2022).
149 Id.
150 Id.
151 The Hippocratic Oath is an oath taken by physicians requiring, amongst
other things, that physicians do no harm to patients and “apply, for the benefit of the
sick, all measures . . . required” to heal. Peter Tyson, The Hippocratic Oath Today,
PBS: NOVA (March 27, 2001), https://www.pbs.org/wgbh/nova/article/hippocratic-
oath-today/.
76
The patient may not be consulted under the language of the statute, as
discussed above. She cannot determine her own fate. Under the trigger law, a
“physician shall make reasonable medical efforts under the circumstances to
preserve both the life of the mother and the life of the unborn human being.”
KRS 311.772(4)(a). But what is reasonable? Does the physician use
probabilities of the likelihood of survival to make a call? With a range as a
survival rate, should the physician assume the best, a 40% mortality rate, or
the worst, 70%? Would either be enough to constitute a “substantial risk of
death” for the purposes of the statute? A mother, again, cannot weigh in on
this decision.
What should be the woman’s decision has been thrust solely into the
hands of medical providers whose hands are tied by the threat of prosecution
and the ambiguity within the statutes’ exceptions. However, the AG asserts
that physicians may rely upon guidance from his office in navigating a woman’s
care. Thus, additionally, a woman’s ability to determine how to pursue her own
safety has been supplanted by the AG’s authority.
In exerting his authority, the AG asks physicians to ignore their training.
He instead requires physicians to rely on his “medical” advice, grounded in
neither medical training nor experience, in executing the purpose of the trigger
statute at issue in this case.152 Even if advice from legal counsel or from the
152 Opinions of the Attorney General, ATTORNEY GENERAL DANIEL CAMERON,
https://www.ag.ky.gov/Resources/Opinions/Pages/default.aspx (“Pursuant to
Kentucky Revised Statutes (KRS) Chapter 15.025, the Attorney General provides legal
opinions to public officials to assist them in the performance of their duties. When
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AG’s office was reliable, being forced to seek such advice is still unconscionable
and impractical. While the physician wastes time with his legal team, the
patient loses precious minutes of life. Each moment that passes increases the
threat to the patient’s survival. While pregnant women bleed out on the table,
alone and untreated, an attorney will be called. This callousness is
unforgivable in the modern medical era.
In addition to the AG’s supposed on-call advice, his office has provided
guidance online regarding the use of the above statutory exceptions in the form
of advisories. The AG’s advisories do not constitute official guidance.153 They
are informal and in no way promise that even physicians who follow them will
be spared from prosecution. Regardless, the first advisory’s alleged guidance
merely reiterates the exception, and the second advisory only discusses two
life-threatening pregnancy-related crises: ectopic pregnancy, and pre-
eclampsia.154 They fail to instruct at all on the host of other pregnancy-related
health concerns that can, and often do, arise.
special circumstances exist, the Attorney General may provide opinions to members of
the general public on issues of significant public interest.”).
153 According to the AG’s website, “Opinions of the Attorney General (OAGs) do
not have the force of law, but they are persuasive and public officials are expected to
follow them.” However, the AG’s guidance regarding the exceptions under the Human
Life Protection Act is found within the category advisories, not the formal opinions
described above that carry persuasive power with public officials. It is unclear whether
these advisories fall under “advice letters,” which are “not published and do not
receive the same detailed review as OAGs. They are not considered legal authority and
should not be cited.” An advisory is not a formal opinion, and at best, falls between
OAGs and advice letters.
154 The AG issued an advisory on October 26, 2022, titled, “Human Life
Protection Act Second Advisory.” This advisory includes:
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Although the AG’s advisories provide limited guidance on reproductive
care for the two conditions noted above, the AG’s advice is called into question
by his other official statements regarding reproductive healthcare. The AG
states on his official government website, “Science is supporting what we have
always known to be true, what scripture tells us is true, that the unborn are
human lives, just like yours and mine.”155 His site notes how the AG has
“repeatedly defended” statutes prohibiting abortions.156 It states that “in the
battle to protect the unborn,” the AG “stands on the frontlines of the fight” and
Does the Human Life Protection Act prohibit removing an ectopic
pregnancy?
No. As a general matter, the removal of an ectopic pregnancy is
not an abortion. See KRS 311.821(1)(c). Additionally, because removing
an ectopic pregnancy is necessary to prevent a substantial risk of death
or a serious, permanent impairment of a life-sustaining organ,
physicians exercising their reasonable medical judgment can remove an
ectopic pregnancy. See KRS 311.772(4)(a).
Does the Human Life Protection Act prohibit a physician from
treating a life-threatening condition such as preeclampsia?
No. The health exception in the Human Life Protection Act allows
physicians to use their reasonable medical judgment to treat life-
threatening conditions, such as preeclampsia. Physicians can use their
reasonable medical judgment to perform an abortion when necessary to
prevent death, a substantial risk of death due to a physical condition, or
serious, permanent impairment of a life-sustaining organ. KRS
311.772(4)(a).
Human Life Protection Act Second Advisory, ATTORNEY GENERAL DANIEL CAMERON
(Oct. 26, 2022),
https://www.ag.ky.gov/Advisories/22.10.26%20Second%20Advisory%20on%20Huma
n%20Life%20Protection%20Act.pdf.
155 Protecting Life, ATTORNEY GENERAL DANIEL CAMERON: PRIORITIES,
https://www.ag.ky.gov/Priorities/Protecting-Life/Pages/default.aspx. An advisory is
not a formal opinion, and at best, falls between OAGs and advice letters.
156 Id.
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“works tirelessly to protect the sanctity of life.”157 I wish to emphasize that the
AG is entitled to his personal position on these issues and is entitled to
proclaim that position publicly. However, physicians are not remiss to question
whether an AG who has made such public proclamations, no matter how well-
intentioned they might be, would forgive any fetal death, especially when the
lines of reasonable necessity are so unclear. Further, one would conclude and
expect that this stanch position could color and permeate the aforementioned
advisories upon which the AG instructs physicians to rely.
In the midst of this confusion, physicians in medical emergencies
involving a pregnant patient are at a stalemate. Do they save themselves from
suffering criminal prosecution; or do they do what they have dedicated their
lives to doing: providing standard of care, collaborative, and compassionate
treatment to patients in need?158 Physicians may not have enough time to
untangle this dilemma when a pregnant patient’s life is on the line.
EMW has presented a substantial question that the trigger law is not
narrowly tailored to “protecting life.” Instead, by taking away the agency of both
a mother and her physician, it puts life at a substantial risk.
The six-week ban’s exception is similarly vague, although it does not pit
the life of the mother against the life of the fetus. That exception states that the
threat of criminal prosecution does not apply to a physician who “performs a
157 Id.
158Physicians have an “ethical responsibility to place patients’ welfare above the
physician’s own self-interest or obligations to others.” AM. MED. ASS’N, Patient-
Physician Relationships, Code of Medical Ethics Opinion 1.1.1.
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medical procedure that, in the physician’s reasonable medical judgment, is
designed or intended to prevent the death of the pregnant woman or to prevent
a serious risk of the substantial and irreversible impairment of a major bodily
function of the pregnant woman.” KRS § 311.7706(2). The statute requires the
physician to “[d]eclare that the medical procedure is necessary . . . to prevent”
the stated risks. Id.
As with the trigger law, this statute’s exception still deprives a pregnant
woman of her ability to collaborate with her physician regarding her medical
treatment. It relegates all decision-making authority to the physician regarding
care, and physicians still must rely on legal advice to determine medical
necessity and risk of prosecution. This uncertainty clearly impacts and
threatens the life of the patient for the reasons stated above. I acknowledge,
however, that because a physician need not try on the face of the exception to
make all attempts to save both the woman and fetus, the exception is more
narrowly tailored than that within the trigger law. The issue nonetheless
presents a substantial question on the merits of the underlying case. Maupin,
575 S.W.2d at 699. Additionally, the two exceptions were never differentiated
before the trial court, and so I must assume the testimony admitted regarding
the effect of the six-week ban as it relates to health outcomes and medical
decision-making is similarly broad.
FIRST-PARTY HARM TO PHYSICIANS
Having discussed the merits of the injunction, I now briefly touch on the
effects of these bans on physicians and their profession. Although I concur
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with the Majority’s holding that the physicians have first-party standing to
assert their claims, I believe that the physicians suffer more than merely
economic harms.
First, physicians’ liberty is threatened by the statutes at issue. A
violation of either statute is a class D felony. KRS 311.772; KRS 311.7706. In
Kentucky, class D felonies carry a penalty of one to five years in prison. KRS
532.060. Under these statutes, even when physicians act in good faith, their
decisions can be questioned, and their freedom is at risk. The physician’s
choice will affect not only his or her patient, but his or her own liberty, since
violating the trigger law will likely result in criminal prosecution.
Second, these statutes harm the practice of medicine on the whole. As
discussed above, physicians are put in the impossible position of adhering to
their Hippocratic Oath, the standard of care, and the requirements of the
statutes at the same time.
When presented with this problem, counsel for the AG opined that a
physician in such a situation should call their legal counsel (as noted by the
AMA President), or even the AG’s office itself, for advice. But as knowledgeable
and professional as those resources may purport to be, they lack important
credentials for dispensing medical advice—namely, a degree in medicine and
approval by the Kentucky Board of Medical Licensure. By what authority can a
lawyer, even the AG, tell a physician how best to treat a patient?
Third, these statutes likely threaten the Commonwealth’s ability to
recruit and retain obstetricians and gynecologists. The threats of harm to
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physicians—including economic harm, threats to liberty, and the inability to
put a patient’s welfare first—will likely impact the Commonwealth’s ability to
attract and keep highly-qualified obstetricians and gynecologists within our
state. This will negatively impact the health of the entire Commonwealth.
The above harms caused by the statutes at issue prevent medical
institutions in the Commonwealth from providing necessary training to the
next generation of physicians. Kentucky is on the precipice of a women’s health
crisis. Thus, the harms themselves will be perpetuated into the foreseeable
future, absent intervention by the Legislature. The Legislature holds the
exclusive power to avoid this eventuality, absent Constitutional infringements.
CONCLUSION
Because the statutes infringe upon a pregnant patient’s fundamental
rights to pursue safety and to self-determination and are likely not sufficiently
narrowly tailored to a compelling government interest, I would hold that EMG
presented a substantial question on the merits of the case below.
This is not to say that any ban on abortion would offend the Constitution
of Kentucky. As fetal life progresses, the weight of the state’s interest
necessarily grows. That shift will affect any constitutional analysis. Likewise,
statutes with meaningful exceptions that do not infringe on a pregnant
patient’s constitutional rights in life-threatening or severely life-altering
medical emergencies may render a statute sufficiently narrowly tailored to
survive strict scrutiny. The six-week ban may, upon further testimony and
judicial review, present such a case. This Court is not tasked with drawing
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those lines at this time. The merits of the declaratory judgment action are still
pending before the trial court.
For the reasons expressed herein, I would affirm the trial court’s
temporary injunction.
Bisig, J., joins.
***
NICKELL, J., CONCURRING IN PART AND DISSENTING IN PART:
I concur with the view that the trial court abused its discretion by
enjoining the enforcement of the abortion bans. However, I respectfully dissent
from any conclusion that Appellees have first-party standing or third-party
standing to assert this pre-enforcement constitutional challenge. There should
not be one set of procedural rules for abortion providers and another for
everyone else.
Our recent unanimous decisions on constitutional standing categorically
preclude this Court from reaching the merits of this pre-enforcement challenge
despite the poignant countervailing considerations of urgent personal
hardships and undisputed public importance. In particular, we recently
refused to entertain pre-enforcement challenges to the death penalty and
COVID-19 regulations, and likewise refused to allow medical providers to
assert the privacy rights of their patients in the context of a pre-enforcement
challenge to data collection laws. Appellees are not situated any differently
than these other claimants. Moreover, pre-enforcement review is an
inappropriate setting to determine the existence of previously unrecognized
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constitutional rights. Therefore, Appellees’ complaint should be dismissed in
its entirety for lack of standing and the trial court erred in addressing the
matter.
In concluding the instant appeal involving a pre-enforcement
constitutional challenge presents neither the proper case nor procedural
posture to exercise this Court’s solemn authority of constitutional review, my
position neither shrinks from nor otherwise casts a blind eye to the
constitutional question of abortion because the unbiased eye of justice
counsels there is no pre-enforcement constitutional question properly
presented for review by this Court or any other lower court. Judicial restraint
does not equate to judicial abdication.
Consistent application of the constitutionally mandated justiciability
doctrine deprives this Court and the courts below of subject-matter jurisdiction
to opine on the question of the right to abortion in advance of strict legal
necessity. Undoubtedly, this matter will ultimately present itself, but in the
appropriate legal context. Nevertheless, for the following reasons, I decline the
invitation to express any opinion, whatsoever, on the underlying merits of the
constitutional question, a matter concerning which I remain open to further
persuasion.
A. STANDING IS A THRESHOLD JURISDICTIONAL ISSUE
Resolution of the present appeal centers upon the justiciability doctrine
of standing. Standing involves the determination of whether a party “is entitled
to have the court decide the merits of the dispute or of particular issues.”
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Sexton, 566 S.W.3d at 193 (internal citation omitted). This Court has adopted
the federal Lujan test to determine whether a party has standing. Id. at 196;
see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). We explained the
test for constitutional standing in Kentucky as follows:
[F]or a party to sue in Kentucky, the initiating party must have the
requisite constitutional standing to do so, defined by three
requirements: (1) injury, (2) causation, and (3) redressability. In
other words, “A plaintiff must allege personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” “[A] litigant must demonstrate
that it has suffered a concrete and particularized injury that is
either actual or imminent . . . .” “The injury must be . . . ‘distinct
and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’”
“The injury must be ‘fairly’ traceable to the challenged action, and
relief from the injury must be ‘likely’ to follow from a favorable
decision.”
Id. (footnotes omitted). Because the standing requirements contained in the
Kentucky Constitution mirror the standing requirements under the United
States Constitution, federal decisions on standing may be accepted as
persuasive authority. Ward v. Westerfield, 653 S.W.3d 48, 52 (Ky. 2022).
Ancient and universally accepted precedent establishes, “[i]t is
emphatically the province and duty of the judicial department to say what the
law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). However, in the very next
line of that landmark opinion, United States Supreme Court Chief Justice John
Marshall clarified, “[t]hose who apply the rule to particular cases, must of
necessity expound and interpret that rule.” Id. The reference to “particular
cases” means justiciable cases. More recently, in delivering the unanimous
opinion of the United States Supreme Court, Chief Justice John Roberts
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echoed and underscored his predecessor’s declaration stating, “[i]n light of th[e]
‘overriding and time-honored concern about keeping the Judiciary’s power
within its proper constitutional sphere, we must put aside the natural urge to
proceed directly to the merits of [an] important dispute and to “settle” it for the
sake of convenience and efficiency.’” Hollingsworth v. Perry, 570 U.S. 693, 704-
05 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 820 (1997)).
Likewise, Kentucky “courts do not function to give advisory opinions,
even on important public issues, unless there is an actual case in controversy.”
Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). Therefore, the issue of
standing must be addressed as a threshold matter because “all Kentucky
courts have the constitutional duty to ascertain the issue of constitutional
standing, acting on their own motion, to ensure that only justiciable causes
proceed in court, because the issue of constitutional standing is not waivable.”
Commonwealth, Cabinet for Health & Fam. Services, Dept. for Medicaid Servs. v.
Sexton ex rel. Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185, 192 (Ky.
2018).
The justiciability requirement operates as a constitutional limitation on
the exercise of judicial power. Id. at 193. While the practical effect of the
standing requirement is to avoid speculation and debate over abstract or
hypothetical questions, the purpose of the doctrine is “founded in concern
about the proper—and properly limited—role of the courts in a democratic
society.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The standing doctrine
“serves to prevent the judicial process from being used to usurp the powers of
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the political branches . . . and confines the . . . courts to a properly judicial
role.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citations omitted).
Accordingly, “[o]ur standing inquiry has been especially rigorous when reaching
the merits of the dispute would force us to decide whether an action taken by
one of the other two branches of the . . . Government was unconstitutional.”
Raines, 521 U.S. at 819-20. The imposition of stringent standing requirements
“frees the Court not only from unnecessary pronouncement on constitutional
issues, but also from premature interpretations of statutes in areas where their
constitutional application might be cloudy.” United States v. Raines, 362 U.S.
17, 22 (1960).
On review, a court must determine whether a party has established
standing for “each separate claim asserted.” International Primate Protection
League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 77 (1991). Each
separate claim must be carefully scrutinized because “‘standing is not
dispensed in gross.’” Davis v. Federal Election Comm’n, 554 U.S. 724, 734,
(2008) (quoting Lewis v. Casey, 518 U.S. 343, 358 n. 6 (1996); alteration
omitted). Further, standing is determined by the position of the parties at the
outset of the litigation. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180 (2000).
B. APPELLEES LACK FIRST-PARTY STANDING
There is no “unqualified right to pre-enforcement review of constitutional
claims.” Whole Women’s Health v. Jackson, 142 S.Ct. 522, 538 (2021)
(emphasis added). Appellees lack first-party standing to assert a pre-
88
enforcement challenge to the constitutionality of the abortion bans because
there is no constitutional right to provide abortion. Similarly, Appellees are not
entitled to assert pre-enforcement constitutional challenges based on alleged
economic harms because state interference with normal business activity does
not implicate a fundamental right. Thus, medical providers do not possess any
automatic rights to challenge abortion regulations and speculative fears of
prosecution are legally insufficient to confer standing. Beshear v. Ridgeway
Properties, LLC, 647 S.W.3d 170, 176 (Ky. 2022).
As an exception to the general procedural rule, courts have relaxed the
standing requirements to allow pre-enforcement challenges to vindicate
expressive rights arising from the First Amendment of the United States
Constitution because society, as a whole, is injured by the impermissible
infringement of the right to free expression. Secretary of State of Maryland v.
Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984). However, the same
underlying societal basis is inapplicable to the present appeal.
Pre-enforcement review outside the First Amendment context involves
the question of whether a statute infringes established fundamental rights as
opposed to the question of whether a putative right exists by implication. See
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). For example,
the United States Supreme Court has recognized the availability of pre-
enforcement review in cases where a party has asserted the threatened
infringement of the rights to property and free expression. Id. (citing Terrace v.
Thompson, 263 U.S. 197 (1923) (property rights); Village of Euclid v. Ambler
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Realty Co., 272 U.S. 365 (1926) (property rights); Ex parte Young, 209 U.S. 123(1908) (property rights); Steffel v. Thompson, 415 U.S. 452 (1974) (free speech
rights)). And, the Supreme Court has also cited Abbott Laboratories v. Gardner,
387 U.S. 136, 141 (1967), for the proposition that certain administrative
regulations are subject to pre-enforcement review. Id. However, the Supreme
Court later clarified that pre-enforcement review of administrative regulations
is limited to situations where the administrative action threatens to infringe
established constitutional rights. Califano v. Sanders, 430 U.S. 99, 109 (1977).
Thus, because Appellees have failed to demonstrate the possible infringement
of a fundamental right, the relaxation of ordinary standing requirements is not
justified in the present appeal.
Three recent decisions of this Court, all unanimous on the issue of
standing, exemplify the general reluctance to allow pre-enforcement
constitutional challenges outside the First Amendment context.
Commonwealth v. Bredhold, 599 S.W.3d 409, 412 (Ky. 2020), cert. denied sub
nom. Diaz v. Kentucky, 141 S.Ct. 1233 (2021); Beshear v. Acree, 615 S.W.3d
780, 828 (Ky. 2020); and Ridgeway Properties, 647 S.W.3d at 177. In
Bredhold, we refused to hear a pre-enforcement challenge to the
constitutionality of the death penalty based on the established right against
cruel and unusual punishment. Similarly, in Acree, this Court refused to hear
a pre-enforcement challenge to COVID-19 regulations based on the established
right to property. Finally, in Ridgeway Properties, we held the fear of
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prosecution was legally insufficient to establish standing. The reasoning of
these decisions applies with equal force to the present appeal.
In Bredhold, the defendant was charged with capital murder. At the
outset of the case, the defendant moved to exclude the death penalty from the
range of possible sentences on the ground that the execution of a person under
the age of twenty-one violates the Eighth Amendment. The trial court granted
the motion and held the death penalty statute unconstitutional insofar as it
permitted the executions of persons under twenty-one years of age. The
Commonwealth filed an interlocutory appeal. We concluded the defendant
lacked standing to raise a constitutional challenge prior to the actual
imposition of the death penalty. Bredhold at 415.
Our analysis began with the proposition that standing requirements
apply equally to facial constitutional challenges and as-applied challenges. Id.
We noted that Eighth Amendment challenges only ripen after sentencing
because the state’s power to punish does not arise until after a constitutionally
sufficient guilty verdict is rendered. Id. We then explained the defendant failed
to establish injury-in-fact:
Thus, assuming conviction, the sentencing range for the Appellees
would extend from a twenty (20) year-sentence to death. To
reiterate, the Appellees have yet to be tried, convicted, or
sentenced. “It is just not possible for [the Appellees] to prove in
advance that the judicial system will lead to any particular result in
[their] case.” With the Appellees having not yet suffered a concrete
and particularized injury by having the death sentence imposed,
no actual or imminent injury exists. At this point, imposition of
the death sentence can only be viewed as hypothetical.
Id. at 418 (emphasis added) (internal citation and footnotes omitted).
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Our conclusion in Bredhold applies with equal force to the present
appeal. Although Eighth Amendment challenges focus on the constitutionality
of punishment as opposed to the constitutionality of a proscription on conduct,
the import of the distinction recedes in light of this Court’s general application
of the Bredhold rationale to reject pre-enforcement challenges to COVID-19
regulations for lack of standing. Acree, 615 S.W.3d at 828; Ridgeway
Properties, 647 S.W.3d at 176.
In Acree, three Kentucky business owners filed suit to challenge various
executive orders in response to the COVID-19 pandemic, which affected their
ability to reopen and operate their respective businesses. The business owners
argued the executive orders:
(1) violate Section 1 of the Kentucky Constitution, which protects
the rights of life, liberty, pursuit of safety and happiness, and
acquiring and protecting property; (2) are arbitrary, in violation of
Section 2 of the Kentucky Constitution; (3) violate the separation of
powers provisions in Sections 27 and 28 of the Kentucky
Constitution; (4) exceed the Governor’s statutory authority to act
pursuant to KRS 39A.100; and (5) are illegal because they violate
the procedures outlined in KRS Chapter 13A for the adoption of
regulations.
Id. at 791. The Attorney General of Kentucky intervened and sought additional
declarations regarding the unconstitutionality of the executive orders. The trial
court determined two of the business owners were entitled to injunctive relief
and entered a restraining order enjoining the enforcement of the executive
orders pending a full hearing on the merits of a temporary injunction.
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The Governor filed a petition for writ of mandamus in the Court of
Appeals seeking to dissolve the restraining order and to prohibit the trial court
from entertaining the motion for temporary injunction. The Court of Appeals
consolidated the writ action with a separate action from another circuit, which
had restrained the enforcement of certain executive orders. The Court of
Appeals denied the Governor’s motion for emergency relief and the merits of the
writ action were set to be considered by a three-judge panel. Subsequently, the
Governor filed a petition for writ of mandamus in this Court.
After determining the property rights enumerated in Sections 1 and 2 of
the Kentucky Constitution do not constitute “fundamental rights,” this Court
rejected the business owners’ pre-enforcement challenge for lack of standing.
Id. at 816, 828. In doing so, we did not specify a precise definition for the term
“fundamental right.” Instead, we relied on established precedent to determine
whether the right to property was fundamental. Id. Our approach to the
determination of fundamental rights was consistent with the guidance of the
United States Supreme Court in Washington v. Glucksberg, 521 U.S. 702, 721
(1997). There the Supreme Court defined fundamental rights as those which
are “implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.” Id. The test for whether a right is
implicit in the concept of ordered liberty is whether the right is “objectively,
‘deeply rooted in this Nation’s history and tradition.’” Id. at 720-21 (quoting
Moore v. East Cleveland, 431 U.S. 494, 503 (1977)).
93
We determined the business owners lacked standing because they failed
to “identify any among themselves who has been threatened with a fine, fined,
threatened with closure, or closed” pursuant to the COVID-19 regulations.
Acree, 615 S.W.3d at 827. We held “because the Plaintiffs’ injury is only
hypothetical, they have failed to show the requisite injury for adjudication of
their claim.” Id. at 828. Further, citing Bredhold, we explained, “a declaration
of rights is not available to the Plaintiffs” because “the Plaintiffs have not raised
a case or controversy.” Id. The term “case or controversy” originates in Article
III, Section 2, Clause 1 of the United States Constitution and “is the lynchpin
for all justiciability doctrines, including standing.” Sexton, 566 S.W.3d at 195.
Subsequent to our decision in Acree, one of the business owners, who
had been denied injunctive relief at the trial court level, filed an amended
complaint seeking to uphold the constitutionality of new legislation curtailing
the Governor’s emergency powers and to enjoin the Governor from enforcing
any measures contrary to the legislation. Ridgeway Properties, 647 S.W.3d at
174. The trial court entered a judgment declaring the legislation was
constitutional and enjoined the Governor from enforcing any orders to the
contrary. We accepted review on transfer from the Court of Appeals.
This Court again held the business owner lacked standing to assert a
pre-enforcement challenge. Id. at 176. We concluded the owner failed to
establish injury-in-fact because there was no evidence any action by the
Governor interfered with the owner’s operation of his business. Id. Again, we
cited Bredhold for the proposition that allegations of future injury are
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insufficient to establish standing and any threatened injury must be “certainly
impending.” Id. We held the fear of enforcement was a “speculative concern,”
which was “not legally sufficient” to establish standing. Id. Further, we
discounted the owner’s fear of future enforcement despite evidence the owner
had been criminally charged for violating the Governor’s previous mask
mandate. Id.
With the foregoing standards in mind, each of Appellees’ claims must be
examined to determine whether Appellees have standing. In Count 1 of the
complaint, Appellees assert “[b]y imposing a total prohibition on abortion, the
Trigger Ban infringes Kentuckians’ ability to decide to terminate a pregnancy,
in violation of Plaintiffs’ patients’ right to privacy as guaranteed by Sections One
and Two of the Kentucky Constitution.” (Emphasis added). In Count 2,
Appellees assert “[b]y imposing a total ban on abortion, the trigger ban
infringes on Kentuckians’ ability to decide to terminate a pregnancy, in violation
of Plaintiffs’ patients’ right to self-determination as guaranteed by Sections One
and Two of the Kentucky Constitution.” (Emphasis added).
In Counts 1 and 2, Appellees have explicitly asserted the putative
constitutional rights of third parties, who are not properly before this Court.
We have previously recognized the rule “a party generally may assert only his
or her own rights and cannot raise the claims of third parties not before the
court.” Sexton, 566 S.W.3d at 193; Associated Industries of Kentucky v.
Commonwealth, 912 S.W.2d 947, 951 (Ky. 1995). There is no reason to depart
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from this general rule in the present appeal. Therefore, Appellees lack first-
party standing with respect to Counts 1 and 2 of the complaint.
In Count 3, Appellees allege “[b]y leaving the future delineation of what
conduct constitutes a crime in Kentucky in the hands of the U.S. Supreme
Court the Trigger Ban improperly delegates the nondelegable legislative duty of
the General Assembly to define the scope of Kentucky criminal law, in violation
of Sections 27, 28, and 29 of the Kentucky Constitution.” In Count 4,
Appellees alleged “[b]ecause the Trigger Ban takes effect only upon the approval
of the authority of the United States Supreme Court and Kentucky’s Attorney
General, the Trigger Ban violates Section 60 of the Kentucky Constitution.”
However, Appellees fail to demonstrate the alleged violations of non-delegation
and notice provisions infringe a fundamental right as recognized by Kentucky’s
history, traditions, and legal precedent.
The alleged existence of an unconstitutional statute, taken alone, is
insufficient to justify the exercise of jurisdiction in a pre-enforcement suit.
Whole Women’s Health, 142 S.Ct. at 538. In the pre-enforcement context,
courts have “always required proof of a more concrete injury and compliance
with traditional rules of equitable practice.” Id. The United States Supreme
Court has “repeatedly held that an asserted right to have the Government act
in accordance with law is not sufficient, standing alone, to confer jurisdiction
on a . . . court.” Allen v. Wright, 468 U.S. 737, 754 (1984).
Appellees have not identified the infringement of any personal
fundamental right sufficient to justify pre-enforcement review. Contrary to the
96
First Amendment pre-enforcement context, any infringement to the personal
rights of Appellees is purely conjectural at this point, because there is no
authority supporting their freestanding constitutional right to perform
abortions. Isaacson v. Mayes, ___ F.Supp.3d ___, 2023 WL 315259 at *5 (D.
Ariz. 2023).
In Isaacson, the United States District Court for the District of Arizona
held that two doctors lacked standing to assert a pre-enforcement
constitutional challenge to state abortion regulations. The District Court
reasoned that, post-Dobbs, the performance of “elective abortions—does not
satisfy the pre-enforcement standing test because the conduct is not arguably
affected with constitutional interest.” Id. (Emphasis added). In the absence of
an established right to abortion, “the chilling effect the . . . [r]egulations have
on doctors performing elective abortions is not the type of injury that can
sustain a pre-enforcement vagueness claim.” Id. The reasoning of the
Isaacson decision is equally applicable to the present appeal.
Prior to Dobbs, a plurality of the United States Supreme Court rejected
the notion that any putative constitutional right to abortion extends to a
medical provider, stating:
[w]hatever constitutional status the doctor-patient relation may
have as a general matter, in the present context it is derivative of
the woman’s position. The doctor-patient relation does not
underlie or override the two more general rights under which the
abortion right is justified: the right to make family decisions and
the right to physical autonomy. On its own, the doctor-patient
relation here is entitled to the same solicitude it receives in other
contexts.
97
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844
(1992), overruled by Dobbs, 142 S.Ct. 2228 (2022).
The United States Court of Appeals for the Sixth Circuit thereafter
reviewed abortion jurisprudence and determined providers have no personal
right to perform abortions. Planned Parenthood of Greater Ohio v. Hodges, 917
F.3d 908, 914 (6th Cir. 2019). The Court explained how the legal position of an
abortion provider is merely derivative of a woman’s position:
But these decisions do not establish that the providers themselves
have due process rights. Much to the contrary. The premise of
these challenges is that the providers have no constitutional rights of
their own in this setting. Why else go through the rigmarole of
granting the provider third-party standing to file the claim? The first
party (the woman) has the claim, and the third party (the provider)
sometimes may bring that claim on her behalf. Any other
interpretation of the third-party doctrine, as the plaintiffs use it
here, would have this disfiguring effect: It would create a
constitutional right for providers to offer abortion services and, in
doing so, move the law perilously close to requiring States to
subsidize abortions. Case law rejects both possibilities.
Id. (Emphasis added).
Other federal and state appellate courts have held similarly. The Ninth
Circuit Court of Appeals refused to hear a pre-enforcement challenge to
restrictions on a proprietor’s right to sell firearms. Teixeira v. County of
Alameda, 873 F.3d 670, 690 (9th Cir. 2017). There, the proprietor argued the
restrictions on his ability to sell firearms infringed upon both his and his
customer’s Second Amendment rights. In rejecting this argument, the Court
likened the proprietor to abortion providers and commented “[n]ever has it
been suggested . . . that if there were no burden on a woman’s right to obtain
98
an abortion, medical providers could nonetheless assert an independent right
to provide the service for pay.” Id. And, relying on Casey and Hodges, the
Supreme Court of Iowa has succinctly and correctly stated “any possible right a
provider may have by way of performing the procedure is no more than
derivative of a woman’s personal rights.” Planned Parenthood of the Heartland,
Inc. v. Reynolds, 962 N.W.2d 37, 56 (Iowa 2021).
The merits of whether the Kentucky Constitution provides greater
abortion rights protection for women than the United States Constitution
remain to be determined, if not in the present case, another, but the test for
standing to assert a pre-enforcement constitutional challenge is the same
under both. Regrettably, the conclusion by a majority of this Court that
abortion providers possess first-party standing to pursue due process
protections relative to their own personal fundamental rights far exceeds the
scope of any prior precedent. There is no principled reason to depart from the
application of our holdings in Bredhold, Acree, and Ridgeway Properties, nor to
ignore the clear import of the Isaacson, Casey, Hodges, Teixeria, and Reynolds
decisions. Under the foregoing authority, determination or review of Appellees’
pre-enforcement challenge to governmental limitations placed on the abortion
providers’ performance of abortions is unquestionably an inappropriate setting
within which to decide whether they possess any personal and, as yet,
unrecognized constitutional right.
Additionally, pre-enforcement determination or review cannot be
premised solely on an alleged interference with Appellees’ general right to
99
practice medicine or alleged speculative economic damages arising from their
inability to provide abortion. Claims involving the right to practice medicine
and alleged economic injuries do not qualify for pre-enforcement review
because they do not implicate a fundamental right. Bankshot Billiards, Inc. v.
City of Ocala, 634 F.3d 1340, 1350 (11th Cir. 2011). State interference with
“normal business activity” simply does not justify pre-enforcement
constitutional review. Id. (citing Kolender v. Lawson, 461 U.S. 352, 358 n. 8
(1983)).
This Court has refused to allow similar economic considerations to
support the standing of other Kentucky business owners who sought to raise a
pre-enforcement challenge to COVID-19 regulations. Acree, 615 S.W.3d at
816. In determining the business owners lacked standing, we applied
established precedent and recognized:
The Constitution does not guarantee the unrestricted privilege to
engage in a business or to conduct it as one pleases. Certain kinds
of business may be prohibited and the right to conduct a business,
or to pursue a calling, may be conditioned.
Id. (quoting Nebbia v. New York, 291 U.S. 502, 527-28 (1934)). A
consistent judicial voice demands that our clearly expressed rationale in
Acree be communicated and applied equally relative to the present
appeal.
The decision of the United States Supreme Court in Craig v. Boren, 429
U.S. 190 (1976) and its plurality decision in Singleton v. Wulff, 428 U.S. 106(1976), are distinguishable and inapplicable to the present appeal. Singleton
100
premised its holding on the established right to abortion and the right to
reimbursement from the government for abortions performed on Medicaid
recipients. Following Dobbs, neither of these conditions currently exist.
Further, Craig premised its holding on the assertion of the established right to
equal protection and economic harm arising from the inability to sell beer. By
contrast, the present appeal does not involve the straightforward application of
a well-established constitutional right. Instead, the question is whether the
silent text of the Kentucky Constitution implies a right to abortion. Further, a
medical provider cannot premise standing merely on alleged economic injuries
because the regulation of the practice of medicine is inherently different from
the regulation of generalized, non-health-related commercial pursuits.
In Singleton, a plurality of the United States Supreme Court held two
abortion providers had first-person standing to challenge a regulation
prohibiting Medicaid funding for elective abortions. The state had refused to
reimburse the abortion providers for abortions already provided to Medicaid
recipients, and the abortion providers anticipated future denials of
compensation while alleging the statute infringed on their ability to practice
medicine.
The plurality did not address the abortion providers’ claims of future
injury or whether the abortion providers had a right to practice medicine.
Instead, the plurality based its holding on past economic injury and stated “[i]f
the physicians prevail in their suit to remove this limitation, they will benefit,
for they will then receive payment for the abortions.” Singleton, 428 U.S. at
101
113. Moreover, the Singleton holding is inapplicable to the present appeal
because, at the time it was decided, the abortion providers were operating in a
legal environment where a woman’s right to obtain an abortion was established
by federal caselaw and the abortion providers were seeking reimbursement
from the government for services already performed. Further, the Singleton
plurality’s premise that abortion providers suffer an injury-in-fact from the
denial of government funding is completely untenable at present because
subsequent decisions of the United States Supreme Court conclusively
established the right to abortion does not include the right to receive
government funding for abortion. See, e.g., Webster v. Reprod. Health Servs.,
492 U.S. 490, 508-13 (1989) (holding governmental refusal to fund abortions
did not violate Roe v. Wade); Harris v. McRae, 448 U.S. 297, 325 (1980)
(upholding the most restrictive version of the Hyde Amendment, Pub. L. No. 96-
123, § 109, 93 Stat. 923, 926 (1979)). Therefore, Singleton is inapplicable to
the present appeal.
In Craig, the United States Supreme Court held a beer vendor had
standing to challenge a statute, on equal protection grounds, prohibiting the
sale of 3.2% alcohol beer to males under the age of 21 and to females under the
age of 18. Notably, unlike the present appeal, the Supreme Court was not
confronted with the question of whether the vendor’s right to equal protection
of the law actually existed. The Supreme Court concluded the vendor had first-
party standing because the statute inflicted “a direct economic injury through
the constriction of her buyers’ market.” Craig, 429 U.S. at 194. By contrast,
102
standing cannot be premised in the present appeal merely on an alleged
economic injury because the practice of medicine is subject to complex and
heightened regulation under the Commonwealth’s police power.
Indeed, Kentucky caselaw has long held there is “no inherent right to
practice medicine or surgery, or to function in any of its branches free from the
right of the legislature under its police power to enact necessary and
reasonable regulations[.]” Reynolds v. Walz, 278 Ky. 309, 128 S.W.2d 734, 735
(1939). The state may legitimately impose restrictions on a medical practice
that might not be tolerable in connection with purely commercial ventures. Id.Additionally, the fact that Appellees were allowed to provide abortion services in
the past does not elevate such circumstance to a fundamental right or
otherwise preclude the General Assembly from changing the law because a
state has the authority to regulate the practice of medicine beyond initial
licensure. Dent v. West Virginia, 129 U.S. 114, 122 (1889). The state’s
heightened power to regulate the practice of medicine is commensurate with
the importance of the medical profession to society. Id. Few professions
require the knowledge, skill, and care possessed by medical doctors. Id.Indeed, the physician must “deal with all those subtle and mysterious
influences upon which health and life depend, and requires not only a
knowledge of the properties of vegetable and mineral substances, but of the
human body in all its complicated parts, and their relation to each other, as
well as their influence upon the mind.” Id. Nevertheless, “there is no right to
103
practice medicine which is not subordinate to the police power of the states.”
Lambert v. Yellowley, 272 U.S. 581, 598 (1926).
Further, there is no mandate that state legislatures uniformly regulate
medical procedures. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489
(1955). States “may select one phase of one field and apply a remedy there,
neglecting the others.” Id. Legislative choice “may be based on rational
speculation unsupported by evidence or empirical data.” F.C.C. v. Beach
Commc’ns, Inc., 508 U.S. 307, 315 (1993). States have “broad latitude” to
regulate doctors, “even if an objective assessment might suggest that” the
regulation is not medically necessary. Mazurek v. Armstrong, 520 U.S. 968,
973 (1997) (quotation marks and emphasis omitted).
In any event, to be clear, the absence of a federal right to provide
abortion does not necessarily foreclose the existence of such a right under the
Kentucky Constitution, though I express no opinion regarding that question in
the current context. However, in the present appeal, and based on the
foregoing legal discussion relative to the practice of medicine and surgery, the
alleged infringement of a doubtful and unspecified personal right to provide
abortion compels the conclusion that these particular claims remain too
abstract and conjectural to warrant pre-enforcement review.
In Count 5, Appellees alleged their due process rights were violated
because KRS 311.772 failed to provide sufficient notice of its effective date.
Specifically, Appellees alleged:
104
The language of the Trigger Ban leaves it unclear whether it is now
in effect, or will go into effect on July 19, 2022, when the mandate
issues. Because of the criminal penalties for violating the Trigger
Ban, Plaintiffs have been forced to stop providing abortion entirely,
even though it is not clear whether the law is actually yet in effect.
By imposing serious criminal and licensure penalties while failing
to give Plaintiffs fair notice of whether the abortion ban takes effect
before or after the Supreme Court’s mandate issues, the Trigger
Ban violates Plaintiffs’ right to due process as guaranteed by
Section 2 of the Kentucky Constitution.
(Paragraph enumeration omitted). Similarly, in Count 6, Appellees further
alleged the trigger ban was unconstitutionally unintelligible in violation of
Sections 27, 28, and 29 of the Kentucky Constitution for failing to define the
point in time at which the ban would become enforceable. Regardless,
however, by Appellees’ own allegations, the vagueness and unintelligibility
challenges centered on whether the trigger ban took effect on, or before, July
19, 2022, a date now well in the past, leaving no doubt as to the statute’s
effectiveness and rendering the question moot.
Dismissal of an appeal is required “when a change in circumstance
renders that court unable to grant meaningful relief to either party.” Med.
Vision Grp., P.S.C. v. Philpot, 261 S.W.3d 485, 491 (Ky. 2008). Moreover, this
Court has repeatedly held Kentucky courts have “no jurisdiction to decide
issues which do not derive from an actual case or controversy.”
Commonwealth v. Hughes, 873 S.W.2d 828, 829 (Ky. 1994). Therefore, Counts
5 and 6 of the complaint must be dismissed as moot.
In Counts 7 and 8, Appellees explicitly assert the fetal heartbeat ban
violates Appellees’ patients’ right to privacy and self-determination. Again,
105
however, we generally do not allow a plaintiff to assert the rights of third
parties who are not properly before the Court. Sexton, 566 S.W.3d at 193.
Therefore, absent any compelling reason to disregard the general rule,
Appellees lack standing to assert Counts 7 and 8 of the complaint.
Finally, Count 9 of the complaint asserts a claim for injunctive relief
while Count 10 asserts a claim for declaratory judgment. It is well-settled,
injunctive relief under CR 65 is “an extraordinary equitable remedy” and may
not be raised as a standalone cause of action. Commonwealth v. Mountain
Truckers Ass’n, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984). A claim for
injunctive relief is not a standalone cause of action. Id. Likewise, the
declaratory judgment is a form of relief and not a standalone cause of action.
Maas v. Maas, 305 Ky. 490, 204 S.W.2d 798, 800 (1947). Thus, because the
substantive claims in Counts 1-8 of the complaint are not justiciable, Appellees
lack standing to seek injunctive and declaratory relief under Counts 9 and 10.
C. APPELLEES ALSO LACK THIRD-PARTY STANDING
Appellees have also failed to establish third-party standing. The
prohibition on third-party standing is “designed to minimize unwarranted
intervention into controversies where the applicable constitutional questions
are ill-defined and speculative.” Craig, 429 U.S. at 193. Third-party standing
doctrine has been termed “prudential,” which signifies “judicially self-imposed
limits” on the exercise of jurisdiction. Allen, 468 U.S. at 751. However, courts
have not always clearly distinguished between judicial rules of self-restraint
106
and constitutional limitations on the exercise of jurisdiction.159 Barrows v.
Jackson, 346 U.S. 249, 255 (1953). In any event, regardless of whether the
procedural rule is deemed constitutional or merely prudential, Appellees are
not entitled to assert claims belonging to their patients.
Importantly, in order for a party to establish third-party standing to
represent the interests of a non-party, the party must initially establish first-
party standing in his or her own right. Kowalski v. Tesmer, 543 U.S. 125, 130
(2004). Further, once first-party standing has been established, the party may
acquire third-party standing on behalf of another only if the party can
additionally establish: (1) a close relationship with the actual possessor of the
right to be asserted; and (2) a genuine obstacle “to the possessor’s ability to
protect his own interests.” Id. In the present appeal, because Appellees failed
to establish first-party standing to assert any of the claims raised in their
complaint, they are precluded from asserting third-party standing to pursue
159 The United States Supreme Court has begun to eliminate the distinction
between constitutional and prudential standing doctrines in favor of treating all
questions of standing as constitutional in nature. Lexmark Intern., Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 n.3 (2014). However, the Supreme Court
noted, “[t]he limitations on third-party standing are harder to classify.” Id. Because
third-party standing was not at issue in Lexmark, “consideration of that doctrine’s
proper place in the standing firmament can await another day.” Id.The “prudential” label for third-party standing analysis has been attributed to a
separate concurring opinion authored by Justice Brandeis. See June Medical, 140
S.Ct. at 2143 (Thomas, J., dissenting) (citing Ashwander v. TVA, 297 U.S. 288, 346-
348 (1936) (Brandeis, J., concurring)). However, Justice Brandeis did not specifically
address the issue of third-party standing in his concurrence. Ashwander, 297 U.S. at
348 (Brandeis, J., concurring). Instead, he merely repeated the longstanding principle
declaring, “[t]he Court will not pass upon the validity of a statute upon complaint of
one who fails to show that he is injured by its operation.” Id.107
the rights of their patients without consideration of whether they meet the
latter two requirements.
This Court previously rejected a claim of third-party standing where
medical providers attempted to assert the privacy rights of their patients under
the Kentucky Constitution. Yeoman v. Commonwealth, Health Policy Bd., 983
S.W.2d 459, 473 (Ky. 1998). In Yeoman, this Court held a group of physicians
lacked standing to challenge a proposed statute, 1994 Kentucky Laws Ch. 512
(H.B. 250), which authorized the collection, analysis, and dissemination of
certain medical data that the physicians alleged violated their patients’ rights
to privacy. Id. We held the threshold requirement of standing had not been
met because the physicians failed to demonstrate “that their own privacy rights
have been violated.” Id. The alleged injury to the patients’ right to privacy was
held too attenuated to support the standing of the physicians. Id. In contrast,
however, we concluded an actual patient had standing to challenge the
proposed data collection law. Id. The rationale announced by this Court in
Yeoman applies correspondingly to the present appeal and forecloses Appellees’
claim of third-party standing.
Moreover, longstanding federal caselaw pertaining to third-party
standing can no longer negate the applicability of our Yeoman decision to the
present appeal nor provide support for the carving of an exception relative to
abortion providers. Indeed, the recent Dobbs decision has undermined the
foundational rationale of prior federal decisions on the third-party standing of
abortion providers to the extent these decisions may no longer be relied upon
108
as persuasive authority. Thus, casual disregard of the Dobbs majority’s
criticism of the United States Supreme Court’s prior application of third-party
standing in the abortion context is unwarranted and ill-advised because such
criticism was integral to Dobbs’ holding that Roe and Casey must be overruled.
Under settled principles of stare decisis, “the mere erroneousness of a
prior line of precedent is generally not sufficient to overturn it.” Bryan A.
Garner, et al., The Law of Judicial Precedent 391 (2016). Indeed, “even in
constitutional cases, the doctrine carries such persuasive force that we have
always required a departure from precedent to be supported by some special
justification.” United States v. International Business Machines Corp., 517 U.S.
843, 856 (1996) (internal quotations omitted). The United States Supreme
Court developed a framework of five factors to be considered when deciding
whether a precedent should be overruled: (1) the nature of its error; (2) the
quality of its reasoning; (3) the “workability” of the rules it imposed on the
country; (4) its disruptive effect on other areas of the law; and (5) the absence
of concrete reliance. Dobbs, 142 S.Ct. at 2265.
Importantly, the Dobbs majority criticized the United States Supreme
Court’s prior abortion decisions as having “ignored the Court’s third-party
standing doctrine.” 142 S.Ct. at 2276. In denouncing the high Court’s prior
disregard of general third-party requirements, the Dobbs majority favorably
cited to prior dissents on the issue of third-party standing for abortion
providers. Id. n.61 (citing June Medical, 140 S.Ct. at 2167-68 (Alito, J.,
dissenting), Id. at 140 S.Ct. at 2173-74 (Gorsuch, J., dissenting), and Whole
109
Woman’s Health, 579 U.S. at 632, n.1, (Thomas, J., dissenting)). Far from
being a passing comment, the erroneous application of third-party standing
doctrine in abortion cases was among the essential factors the majority cited as
special justification for its decision to overrule Roe and Casey. Id. The Dobbs
majority further stated, “Roe and Casey have led to the distortion of many
important but unrelated legal doctrines, and that effect provides further
support for overruling those decisions.” Id.
My position that it was the intention of the Dobbs majority to standardize
application of the third-party standing doctrine is supported by subsequent
federal and state decisions. The Eleventh Circuit Court of Appeals has already
recognized the import of the Dobbs decision beyond the existence of the right to
abortion, declaring:
Because we take the Supreme Court at its word, we must treat
parties in cases concerning abortion the same as parties in any
other context. And to the extent that this Court has distorted legal
standards because of abortion, we can no longer engage in those
abortion distortions in the light of a Supreme Court decision
instructing us to cease doing so.
SisterSong Women of Color Reproductive Justice Collective v. Governor of
Georgia, 40 F.4th 1320, 1328 (11th Cir. 2022).
Judge Bush of the Sixth Circuit also specifically observed, “Dobbs has
since explicitly cast such precedents [on third-party standing] into grave
doubt.” EMW Women’s Surgical Center, P.S.C. v. Friedlander, No. 19-5516,
2022 WL 2866607 (6th Cir. July 21, 2022) (Bush, J., concurring in part). In
Isaacson, Judge Rayes stated, “[t]his Court is bound by the Supreme Court’s
110
directives, and so to avoid engaging on remand in the same distortions Dobbs
identified, the Court must carefully examine whether Plaintiffs may challenge
the . . . [r]egulations facially and pre-enforcement, rather than as applied in an
enforcement action.” ___ F.Supp.3d ___, 2023 WL 315259 at *3.
Our sister states have also noted the implications of the Dobbs decision
on third-party standing. The District Court of Appeal of Florida observed, “any
former decision from the United States Supreme Court acknowledging such
‘standing’ of a party to advocate on behalf of a person not appearing in the case
. . . is now in question.” State v. Planned Parenthood of Southwest and Central
Florida, 342 So.3d 863, 869 n.* (Fla. 1st DCA 2022).
Clearly, the Dobbs majority’s specific criticism of the Supreme Court’s
prior third-party standing decisions was inextricably intertwined with the
majority’s central holding that Roe and Casey must be overruled. Again,
though this Court is not bound by any federal decisions on standing, we have
specifically adopted and applied federal standing doctrine to the extent that
federal decisions should be respected as persuasive authority. Importantly, the
restoration of traditional standing principles at the federal level dovetails with
this Court’s pre-existing standing precedents in Yeoman, Bredhold, Acree, and
Ridgeway Properties.
Based on the foregoing, any holding that Appellees possess third-party
standing to assert alleged, but as yet unrecognized, abortion rights under
Kentucky’s Constitution on behalf of their patients overlooks the perhaps
inconvenient, but nonetheless unavoidable, truth that the Dobbs decision
111
represented a radical departure from prior abortion jurisprudence, in general,
and with regard to third-party standing, in particular. The less than subtle
suggestion by some hinting that Appellees join impacted patients to this
litigation belies at least some doubt or concern regarding the abortion
providers’ legal authority and qualification to champion their patients’
constitutional cause. Inviting the joinder of additional parties on remand
would also seem to contravene long-established precedent holding, “[i]t is not
the function of this Court to practice cases for litigants.” Allen v. Murphy, 225
S.W.2d 23, 25 (Ky. 1953).
Even so, two arguments have been advanced to marginalize any impact
of the Dobbs decision on prior third-party standing decisions. Neither
argument has merit.
First, it has been suggested that if the Dobbs majority had truly intended
to alter the landscape of third-party standing doctrine, then it should have
seized the opportunity to address the issue more fully or otherwise have simply
dismissed the appeal on standing grounds. However, the grant of certiorari in
Dobbs was expressly limited to the single question, “whether all pre-viability
prohibitions on elective abortions are unconstitutional.” Dobbs v. Jackson
Women’s Health Organization, 141 S.Ct. 2619, 2620 (2021) (order granting
petition for writ of certiorari); Dobbs Pet., No. 19-1392, 2020 WL 3317135 (U.S.
June 15, 2020). The Supreme Court specifically declined to grant certiorari on
the issue of third-party standing. Id.112
The only meaning that may be ascribed to the denial of certiorari on
third-party standing “is that fewer than four members of the Court thought it
should be granted.” State of Maryland v. Baltimore Radio Show, 338 U.S. 912,
919 (1950). As Justice Frankfurter eloquently explained, “[w]ise adjudication
has its own time for ripening,” and “[i]t may be desirable to have different
aspects of an issue further illumined by the lower courts.” Id. at 918.
The Dobbs majority logically and consistently declined to dismiss the
appeal on standing grounds. Under existing precedent, third-party standing
requirements are prudential rather than jurisdictional; therefore, dismissal was
not mandated and the denial of certiorari on the issue does not imply
agreement with the lower court’s decision. Allen, 468 U.S. at 751; Baltimore
Radio, 338 U.S. at 918. And, as stated above, the majority’s criticism of the
prior third-party standing decisions was incorporated into Dobbs’ central
holding through the necessary stare decisis analysis.
Second, it is argued that the Dobbs majority’s criticism of prior third-
party standing decisions is mere dicta and its influence should be marginal
because it does not carry binding precedential authority. However, though not
binding authority, dicta may be “persuasive or entitled to respect” according to
its reasoning and applicability and where “it was intended to lay down a
controlling principle.” Cawood v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952).
The Dobbs majority’s criticism of prior decisions pertaining to third-party
standing, though noncompulsory, demands consideration because its
substance communicated the thoughts of the concurring justices and was
113
deemed sufficiently important to have been included in the majority opinion.
Drake v. Johnson, 3 Ky. 218, 231, 1808 WL 713 (1808) (“[i]t is true, these
decisions are not binding authority upon us; but they certainly deserve our
respect; especially that of the supreme court of the United States; as well on
account of its being the highest tribunal of justice in the Union, as on account
of the acknowledged learning of the judges.”).
Moreover, while seeking to minimize criticism contained in the Dobbs
dicta, the primary cases cited in support of determining third-party standing
for the Appellee abortion providers are plurality opinions. However, neither
dicta nor plurality opinions have binding precedential value. Hudson v.
Commonwealth, 202 S.W.3d 17, 21 (Ky. 2006). Thus, logic demands a careful
weighing of the Dobbs dicta and the pre-Dobbs plurality decisions, particularly
because the Dobbs dicta was directly critical of the earlier opinions. In
addition, the analytical impact of the previous plurality decisions is further
negated because their holdings were based on a fundamental right to abortion
under the United States Constitution which Dobbs extinguished.
In June Medical, a plurality of the United States Supreme Court held the
state had waived its argument that abortion providers lacked third-party
standing to challenge an abortion restriction. 140 S.Ct. 2103, 2118 (2020). In
doing so, the plurality proceeded to string cite past decisions on third-party
standing from a variety of contexts. Id. Particularly, the plurality cited to
Craig, 429 U.S. at 195, for the proposition that threatened governmental
114
sanctions for non-compliance eliminated any risk the abortion providers’
claims were hypothetical or speculative. Id. at 2119.
The cited Craig decision, in turn, largely premised its departure from the
general prohibition on third-party standing upon the discredited holding of the
Singleton plurality. 429 U.S. at 193-95. As previously noted, the Craig
decision addressed the well-established right to equal protection of the law and
harm stemming from a vendor’s inability to sell beer to 18–20-year-old males.
By contrast, the right to abortion is no longer well-established following the
Dobbs decision, which precludes the availability of pre-enforcement review.
Further, as has been already stated, this Court’s standing analysis
distinguishes between economic harms arising from purely commercial
pursuits and those arising from the regulation of medical services. See
Reynolds, 128 S.W.2d at 735.
The June Medical plurality also cited to Singleton, 428 U.S. at 112, yet
another plurality opinion for the proposition that abortion providers are the
“least awkward” and most “obvious” claimants because they “are far better
positioned than their patients” to challenge the constitutionality of abortion
restrictions. June Medical, 140 S.Ct. at 2119. However, the June Medical
plurality’s dependence upon the “least awkward” or most “obvious” claimant
test announced in Singleton for third-party standing is inconsistent with the
third-party standing requirements firmly established by the Supreme Court’s
majority in Kowalski, 543 U.S. at 130, as set forth above. For these reasons,
June Medical lacks persuasive value on the issue of third-party standing.
115
Further, any notion that the Singleton plurality decision is representative
of a settled history of recognizing the third-party standing of abortion providers
is misplaced. As stated above, Singleton’s “sweeping general statement of
abortion provider standing and the specific applications of law to fact have
never been adopted by a majority of the court.” Stephen J. Wallace, Why Third-
Party Standing in Abortion Suits Deserves A Closer Look, 84 Notre Dame L. Rev.
1369, 1397 (2009) (collecting cases). It cannot be overemphasized, the
Singleton plurality premised first-party standing on the right to abortion and
the attendant right to receive Medicaid reimbursement for abortion, neither of
which conditions currently exist, post-Dobbs. Thus, Singleton can in no way be
reasonably read to support Appellees having first-party standing. Further, as
stated above, without first-party standing, Appellees cannot claim third-party
standing. Kowalski, 543 U.S. at 130.
Even assuming first-party standing for the sake of argument, the
Singleton plurality’s application of the close relationship and genuine obstacle
tests was speculative and internally inconsistent. After concluding women
faced genuine obstacles in asserting their own rights, the Singleton plurality
acknowledged “that these obstacles are not insurmountable,” that women
retained the ability to file suit under a pseudonym, and review under
exceptions to the mootness doctrine likewise remained available. Singleton,
428 U.S. at 108. Therefore, the existence of a genuine obstacle to women
asserting their own rights was correctly deemed “chimerical,” that is, mythical
and illusory. Id. at 126 (Powell, J., dissenting).
116
The Singleton plurality’s analysis is further discredited in comparison to
the more recent Kowalski case where a majority of the United States Supreme
Court applied the test for third-party standing. In Kowalski, the Supreme
Court addressed whether two defense attorneys could challenge a statute
which prohibited the appointment of appellate counsel for indigent defendants
who had pleaded guilty. The majority held the attorneys had failed to
demonstrate a sufficiently close relationship because they had alleged only
harm to future, hypothetical clients. Kowalski, 543 U.S. at 131. Regarding the
genuine obstacle prong, the Supreme Court rejected the argument that
indigent pro se criminal defendants could not adequately assert their own
rights on appeal after citing cases involving pro se defendants who had actually
done so. Id. at 132. Thus, the Supreme Court noted a bare alleged lack of
valuable assistance did not qualify as the type of genuine obstacle necessary to
allow a third-party to assert a non-party’s rights. Id.In the present matter, Appellees have failed to demonstrate their patients
face a genuine obstacle to the assertion of their rights in Kentucky courts. In
the appropriate case, Kentucky law permits a party to appear under a
pseudonym. Doe v. Coleman, 497 S.W.3d 740, 752 (Ky. 2016); Roe v. Clark,
2017-SC-0256-MR, 2018 WL 1960823 at *1 (Ky. April 26, 2018); Doe 1 v.
Flores, ___ S.W.3d ___, 2022 WL 4390880, at *3 (Ky. App. Sept. 23, 2022); Doe
v. Potter, 225 S.W.3d 395, 397 (Ky. App. 2006); Doe v. Golden & Waters, PLLC,
173 S.W.3d 260, 263 n.8 (Ky. App. 2005). While there does not appear to be a
reported Kentucky decision concerning the use of a pseudonym in an abortion
117
case, at the federal level, “interested women have challenged abortion
regulations on their own behalf in case after case.” June Medical Services, 140
S.Ct. at 2174 (Gorsuch, J., dissenting) (citing McCormack v. Herzog, 788 F.3d
1017 (9th Cir. 2015); Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996);
Margaret S. v. Edwards, 794 F.2d 994 (5th Cir. 1986)). Further, in the
appropriate case, Kentucky law allows courts to apply the exception to the
mootness doctrine. Morgan v. Getter, 441 S.W.3d 94, 100 (Ky. 2014).
Moreover, the quality and extent of the constitutional challenges pursued by
impoverished women over the course of the abortion debate belies any
reasonable suggestion that their access to the courts of justice has been
substantially impeded. Thus, the purported genuine obstacles to the ability of
Appellees’ patients to assert their own rights in Kentucky courts are likewise
“chimerical,” mythical, and illusory. Appellees’ claim to third-party standing
could be rejected on this basis alone.
Neither does Planned Parenthood of Central Missouri v. Danforth, 428
U.S. 52, 62 (1976), merit precedential or persuasive effect for its supposed
historical recognition of third-party standing for abortion providers. In
Danforth, the United States Supreme Court cited Doe v. Bolton, 410 U.S. 179,
188 (1973), abrogated by Dobbs, 142 S.Ct. 2228, in support of its conclusion
that “the physician-appellants clearly have standing” because the physician is
the person against whom the statute directly operates. 428 U.S. at 62. The
Danforth Court further quoted Bolton for the proposition that the abortion
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providers “should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief.” Id.
The Bolton decision cannot be read to support the independent standing
of an abortion provider because “[t]he constitutional right vindicated in [Bolton]
was the right of a pregnant woman to decide whether or not to bear a child
without unwarranted state interference.” Whalen v. Roe, 429 U.S. 589, 604
n.33 (1977). The Supreme Court explained, “[n]othing in that case [Bolton]
suggests that a doctor’s right to administer medical care has any greater
strength than his patient’s right to receive such care.” Id. The Supreme Court
explicitly recognized that the abortion regulations at issue in Bolton “would not
have violated the Constitution” unless “those obstacles had not impacted upon
the woman’s freedom to make a constitutionally protected decision.” Id.The “direct operation” test, as applied by the Danforth and Bolton
decisions, was premised on the assumption the abortion providers were
seeking to vindicate a woman’s established right to abortion. Once again, this
assumption is no longer valid in the wake of Dobbs, and the assertion of an
unrecognized constitutional right is insufficient to justify pre-enforcement
review. This concept is neither new nor novel and harkens to our precedent.
Appellees are in no different position than the claimants whose pre-
enforcement challenges we refused to hear in Yeoman, Bredhold, Acree, and
Ridgeway Properties. For the foregoing reasons, Appellees lack third-party
standing and the complaint must be dismissed.
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I would further emphasize that all of Appellees’ claims involve facial pre-
enforcement challenges, which are “the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987). Moreover, facial challenges to the constitutionality of statutes
are disfavored because they “often rest on speculation.” Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008).
Finally, pre-enforcement challenges to abortion regulations necessarily involve
an “empirical inquiry,” which “is precisely the sort of inquiry that is least suited
for pre-enforcement challenges.” Memphis Center for Reproductive Health v.
Slatery, 14 F.4th 409, 455 (6th Cir. 2019) (Thapar, J., concurring in part,
dissenting in part).
As Judge Thapar observed, “[u]nlike lawmakers who can continually
reevaluate their findings through standing committees and incremental
experimentation, judges hearing pre-enforcement challenges must make snap
calls that begin with no evidence on the ground and end with a final judgment
that is not easy to amend.” Id. To demonstrate appropriate respect to
legislative departments, particularly in light of constitutional limitations upon
judicial authority, courts require something more than speculation to find
standing. Yet, in this record, there is only speculation.
Further, it cannot be claimed that a lack of standing in this particular
case unfairly insulates the abortion bans from judicial review because “[t]he
assumption that if respondents have no standing to sue, no one would have
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standing, is not a reason to find standing.” Clapper v. Amnesty Intern. USA,
568 U.S. 398, 420 (2013) (citation and internal quotation marks omitted). This
Court has also previously stated that a party who lacks standing is not without
recourse because judicial review is available should the party become subject
to a non-speculative injury. Acree, 615 S.W.3d at 828. Ultimately, because
standing doctrine implicates the separation of constitutional powers, “[i]t is not
for this Court to employ untethered notions of what might be good public policy
to expand our jurisdiction in an appealing case.” Whitmore v. Arkansas, 495
U.S. 149, 161 (1990).
D. TEMPORARY INJUNCTION WAS ABUSE OF DISCRETION
Appellees’ lack of standing should end the discussion, requiring
dismissal of Appellees’ complaint. However, given the diverging views of this
Court on the propriety of the temporary injunction, I am compelled to address
the patent errors of the trial court’s analysis. See Commonwealth ex rel.
Conway v. Thompson, 300 S.W.3d 152, 171 (Ky. 2009). My analysis is limited
to the propriety of the temporary injunction, and I take no position on the
ultimate question of whether the Kentucky Constitution implies a right to
abortion, remaining open to further persuasion in the proper case and context.
Nothing herein should be construed to indicate otherwise. With that said, I am
convinced the trial court failed to apply longstanding precedent to the question
of whether Appellees were entitled to the issuance of a temporary injunction,
invoking the power of judicial review while ignoring the well-established
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standards governing its application. Therefore, the trial court abused its
discretion.
Doubt counsels against both the issuance of a temporary injunction and
the determination of a statute’s unconstitutionality. CR 65.04 requires a party
to “clearly” demonstrate the violation of a personal right and consequent
irreparable injury before a temporary injunction will issue. Likewise, a statute
should not be deemed invalid unless the constitutional violation is “clear,
complete and unmistakable.” Kentucky Industrial Utility Customers, Inc. v.
Kentucky Utilities Company, 983 S.W.2d 493, 499 (Ky. 1998). Further, it is an
abuse of discretion for a trial court to apply novel and unrecognized legal
theories to support the issuance of a temporary injunction. See Stuart Hall Co.,
Inc. v. Ampad Corp., 51 F.3d 780, 791 (8th Cir. 1995); Cincinnati Bengals, Inc.
v. Bergey, 453 F.Supp. 129, 145 (S.D. Ohio 1974) (“where there are novel or
complex issues of law or fact that have not been resolved a preliminary
injunction should be denied.”).
Our Civil Rules and well-established caselaw demand enhanced
requirements for entitlement to a temporary injunction beyond those required
to establish standing. See Taylor v Resolution Trust Corp., 56 F.3d 1497, 1509
(D.C. Cir. 1995); see also Maupin v. Stansbury, 575 S.W.2d 695, 697 (Ky. App.
1978). CR 65.04 authorizes the issuance of a temporary injunction and states
as follows:
A temporary injunction may be granted during the pendency of an
action on motion if it is clearly shown by verified complaint,
affidavit, or other evidence that the movant’s rights are being or will
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be violated by an adverse party and the movant will suffer
immediate and irreparable injury, loss, or damage pending a final
judgment in the action, or the acts of the adverse party will tend to
render such final judgment ineffectual.
(Emphasis added). A party must satisfy a three-part test before a temporary
injunction may be granted:
First, the trial court should determine whether plaintiff has
complied with CR 65.04 by showing irreparable injury. This is a
mandatory prerequisite to the issuance of any injunction.
Secondly, the trial court should weigh the various equities
involved. Although not an exclusive list, the court should consider
such things as possible detriment to the public interest, harm to
the defendant, and whether the injunction will merely preserve the
status quo. Finally, the complaint should be evaluated to see
whether a substantial question has been presented.
Maupin, 575 S.W.2d at 699. A temporary injunction should issue “only where
absolutely necessary to preserve a party’s rights pending the trial of the
merits.” Id. at 698. Therefore, “[b]ecause a temporary injunction often has the
effect of enforcing a mere claim of the right, doubtful cases should await trial of
the merits.” Id.The power to enjoin the enforcement of statutes must be exercised with
great caution because “courts will not, except under extraordinary
circumstances, interfere with the duties of other departments of the
government, equity will not ordinarily interfere with the action of public officers
taken under statutory authorization.” Akers v. Floyd Co. Fiscal Court, 556
S.W.2d 146, 149 (Ky. 1977) (quoting 42 Am.Jur.2d, Injunctions, § 186). A trial
court must ensure the requirements for injunctive relief have been clearly
satisfied because:
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The power thus to arrest the hand of an officer as he is about to
carry out the command of the legislature is to be exercised with a
wisdom and discretion commensurate with its greatness; no trivial
grounds will be sufficient to authorize the granting of such
extraordinary relief.
Id. When a party seeks to enjoin the enforcement of a duly enacted statute, the
law requires the party to demonstrate, in addition to irreparable injury, “a
likelihood of success on the merits rather than merely demonstrating
sufficiently serious questions going to the merits.” 42 Am.Jur.2d Injunctions §
168 (2022).
It is well-established that a trial court’s decision to grant or deny a
temporary injunction is reviewed for abuse of discretion. Maupin, 575 S.W.2d
at 699. The test for abuse of discretion is whether the trial court’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
While an appellate court must afford due deference to the findings of a trial
court, we owe no deference to findings “occasioned by an erroneous application
of the law.” Cameron v. Beshear, 628 S.W.3d 61, 72 (Ky. 2021). The erroneous
application of the law constitutes an abuse of discretion because such a
decision is unsupported by sound legal principles. Id. With the foregoing
standards in mind, it is necessary to examine each of the three Maupin factors
in turn.
Under the first Maupin factor, the trial court abused its discretion by
determining that Appellees demonstrated irreparable injury. An injury is
irreparable if “there exists no certain pecuniary standard for the measurement
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of the damages.” Cyprus Mountain Coal Corp. v. Brewer, 828 S.W.2d 642, 645
(Ky. 1992). As with standing, irreparable injury must result from the “possible
abrogation of a concrete personal right.” Id. at 698. (Emphasis added).
The trial court based its finding of irreparable injury on the inability of
unidentified, non-party patients to receive an abortion. The trial court also
concluded that relief upon final judgment would be meaningless to “many
people” (unidentified hypothetical non-parties) because they would be past
gestational age requirements or would have been forced to carry their
pregnancies to term. Despite the poignancy of these alleged injuries, such
injuries simply do not result from an injury to the personal rights of Appellees
because, as has already been noted, any possible constitutional rights an
abortion provider may possess are merely derivative of a woman’s right.
Hodges, 917 F.3d at 914.
And, to the extent the trial court relied on any economic injuries incurred
by Appellees, economic injuries are generally not irreparable under Kentucky
law. Norsworthy v. Kentucky Bd. of Medical Licensure, 330 S.W.3d 58, 62 (Ky.
2009). Further, there is no inherent right to practice medicine free from
regulation by the state. Reynolds, 128 S.W.2d at 735. The practice of
medicine as a business is also subject to heightened regulation because a
medical practice is fundamentally different from purely commercial pursuits.
Id. Appellees’ failure to demonstrate irreparable injury categorically precludes
temporary injunctive relief.
125
Under the second Maupin factor, the trial court improperly balanced the
equities by failing to consider governing law regarding: the harm to the public
interest; the harm to the Commonwealth; and whether injunctive relief would
alter the status quo. Regarding the public interest, the trial court concluded
the denial of abortion services was detrimental to public health because
“Plaintiffs assert, and this Court agrees, that abortion is a form of healthcare.”
The trial court’s conclusion was unsupported by sound legal principles
because, although a person may enjoy a right to seek or reject medical
treatment generally, there is no constitutional right to select a particular
treatment or procedure over the rational objections of a governmental
authority. Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980). It
is the prerogative of the General Assembly, not the courts or medical providers,
to set public policy regarding matters affecting public health. Cameron, 628
S.W.3d at 73.
Regarding the harm to the Commonwealth, the trial court improperly
discounted the legitimacy and extent of the Commonwealth’s interest in
enforcing the abortion bans. The trial court also ignored or overlooked
applicable caselaw recognizing the Commonwealth’s legitimate interest in the
protection of unborn life. Dobbs, 142 S.Ct. at 2261. Instead, the trial court
cited Harrod v. Whaley, 239 S.W.2d 480, 482 (Ky. 1951), to support its
conclusion that the Commonwealth would suffer minimal, if any, harm from
the issuance of a temporary injunction because “the state has no interest in
enforcing an unconstitutional law.” However, Harrod has no application to the
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present appeal because the context of the Harrod decision involved a collateral
attack on a final judgment of conviction. The Court stated:
The office or purpose of the writ of habeas corpus is not to review
errors committed in the trial. It is a collateral attack upon the
judgment. It raises only the question whether the judgment under
which the petitioner is confined is absolutely void. It may be void
by reason of the omission of due process, want of jurisdiction of
the court which tried him, and that in turn may be because the
indictment did not charge the commission of a public offense as
where there was no such offense cognizable in law or where the
statute is unconstitutional, hence, is no law at all.
Id.Clearly, the fact that a constitutional challenge is an appropriate subject
for review on a petition for writ of habeas corpus following a final judgment of
conviction simply does not justify a departure from the presumption of
constitutionality and other rules governing the interpretation of statutes in the
first instance. Further, on a motion for temporary injunction, the trial court
could not conclude the statutes at issue are unconstitutional without ignoring
the presumption of a statute’s constitutionality and making a premature
determination on the merits. The trial court also completely ignored the
presumption that “non-enforcement of a duly-enacted statute constitutes
irreparable harm to the public and the government.” Cameron, 628 S.W.3d at
73. The reason underlying this presumption is a “statute’s enactment
constitutes an implied finding by the legislature that the public interest
required it.” Id. (citing Boone Creek Props., LLC v. Lexington-Fayette Urb. Cnty.
Bd. of Adjustment, 442 S.W.3d 36, 40 (Ky. 2014)).
127
Regarding the issue of whether injunctive relief would alter the status
quo, the trial court erroneously concluded that the issuance of a temporary
injunction would “merely restore the status quo that has existed in Kentucky
for fifty years.” Presumably, the trial court was using the date of Roe v. Wade
to mark the status quo in Kentucky prior to Dobbs. In a typical case between
private parties, the status quo is the last uncontested status existing between
the parties. However, a temporary injunction which prevents future injury
necessarily alters the status quo. 11 Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 2948 (3d. Ed. 2022) (“If preliminary relief is
granted [to prevent future injury], defendant, by complying, would effect a
change in the current situation.”). By invalidating a legislative enactment,
which, by definition, is taken in the public interest, the trial court provisionally
granted the ultimate relief sought by Appellees in their complaint and,
therefore, changed the status quo. Id.
Further, the trial court’s use of Roe to mark the status quo was
unsupported by sound legal principles because “a court is to apply the law in
effect at the time it renders its decision.” Commonwealth v. Alexander, 5
S.W.3d 104, 106 (Ky. 1999). At the time trial court issued the temporary
injunction, Roe had been expressly overruled by Dobbs and was, thus, a legal
nullity. The abortion bans which are the subject-matter of the present appeal
were duly enacted by the General Assembly in 2019. Additionally, in 1982, the
General Assembly enacted KRS 311.710(5) to declare the public policy of
Kentucky in light of the Roe decision. KRS 311.710(5) states:
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It is the present intention of the General Assembly to protect the
valid and compelling interests of the Commonwealth and its
inhabitants without unduly burdening a woman's constitutional
privacy rights as delineated by the courts. If, however, the United
States Constitution is amended or relevant judicial decisions are
reversed or modified, the declared policy of this Commonwealth to
recognize and to protect the lives of all human beings regardless of
their degree of biological development shall be fully restored.
(Emphasis added). Consequently, the years 2019 and 1982 are the operative
dates concerning the status quo in Kentucky at the time Dobbs was decided.
The temporary injunction did not preserve the status quo. Therefore, the trial
court abused its discretion by failing to properly balance the equities in
accordance with governing law.
Under the third and final Maupin factor, the trial court likewise abused
its discretion by concluding Appellees demonstrated a substantial question on
the merits of Appellees’ constitutional challenges. In doing so, the trial court
further erred by, sua sponte, injecting unraised constitutional claims. As with
the standing analysis, it is necessary to address each of Appellees’ substantive
claims in turn before addressing claims improvidently raised by the trial court.
In Counts 1 and 2 of the complaint, Appellees asserted that the trigger
ban infringed upon their patients’ rights to privacy and self-determination in
violation of Sections 1 and 2 of the Kentucky Constitution. Similarly, in
Counts 7 and 8, Appellees asserted that the heartbeat ban violated their
patients’ rights to privacy and self-determination. The trial court abused its
discretion by determining there is a substantial question on the merits of
whether the abortion bans infringe upon the rights of privacy and self-
determination.
129
The trial court’s erroneous application of decisions involving the right to
consensual sodomy and the right to refuse unwanted medical treatment hardly
establishes a clear, complete, and unmistakable right to abortion.
Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) (holding right to privacy
implies right to engage in sodomy); Woods v. Commonwealth, 142 S.W.3d 24,
32 (Ky. 2004) (holding right to self-determination implies right to refuse
unwanted medical treatment). The United States Supreme Court has
consistently recognized the unique nature of abortion distinguishes it from
other rights because abortion destroys a potential human life apart from the
party making the choice, whereas consensual sodomy and the refusal of
unwanted medical treatment do not. See Dobbs, 142 S.Ct. at 2258.
The Casey plurality further described abortion as “a unique act,” which
is “fraught with consequences for others.” Casey, 505 U.S. at 852. The Roe
Court also specifically distinguished abortion from “from marital intimacy, or
bedroom possession of obscene material, or marriage, or procreation, or
education.” Roe, 410 U.S. at 159. Therefore, analogy to other rights fails to
create a substantial question regarding the right to abortion.
The trial court’s reliance on Wasson and Woods also ignored or
overlooked relevant Kentucky precedent. In Sasaki v. Commonwealth, 485
S.W.2d 897, 902 (Ky. 1972), our predecessor Court unanimously upheld
Kentucky’s previous abortion statute against a variety of constitutional
challenges, including the grounds of privacy. The Court further noted that
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“more than a half of a century of unchallenged existence and application”
weighed in favor of the statute’s constitutionality. Id. at 903.
Instead of considering our predecessor Court’s specific constitutional
analysis on abortion, the trial court cited Mitchell v. Commonwealth, 78 Ky.
204, 210, 1879 WL 6707 (1879), as casting doubt on the constitutionality of
the current abortion statutes because a “pre-quickening” abortion was not a
crime at common law.160 However, the trial court ignored the full text of the
Mitchell decision, which held:
In the interest of good morals and for the preservation of society,
the law should punish abortions and miscarriages, wilfully
produced, at any time during the period of gestation. That the
child shall be considered in existence from the moment of conception
for the protection of its rights of property, and yet not in existence,
until four or five months after the inception of its being, to the extent
that it is a crime to destroy it, presents an anomaly in the law that
ought to be provided against by the law-making department of the
government. The limit of our duty is to determine what the law is,
and not to enact or declare it as it should be. In the discharge of
this duty, and after a patient investigation, we are forced to the
conclusion that it never was a punishable offense at common law
to produce, with the consent of the mother, an abortion prior to
the time when the mother became quick with child. It was not
even murder at common law to take the life of the child at any
period of gestation, even in the very act of delivery.
Id. (emphasis added). Far from supporting a constitutional right to abortion,
the Mitchell Court viewed the common law on abortion as an anomaly
susceptible of abrogation by the legislature. Further, at common law, the
quickening distinction was most likely premised on the evidentiary “difficulty of
160 At common law, quickening referred to “the first felt movement of the fetus
in the womb, which usually occurs between the 16th and 18th week of pregnancy.”
Dobbs, 142 S.Ct. at 2249.
131
proving that a pre-quickening fetus was alive.” Dobbs, 142 S.Ct. at 2251.
There is “no common-law case or authority . . . that remotely suggests a
positive right to procure an abortion at any stage of pregnancy.” Dobbs, 142
S.Ct. at 2251. Moreover, the viability, or even the legal personhood, of a fetus
is irrelevant to the question of whether a legislature possesses the
constitutional authority to prohibit abortion. John Hart Ely, The Wages of
Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 926 (1973).
Professor Ely explained:
For it has never been held or even asserted [until Roe] that the
state interest needed to justify forcing a person to refrain from an
activity, whether or not that activity is constitutionally protected,
must implicate either the life or the constitutional rights of another
person. Dogs are not “persons in the whole sense” nor have they
constitutional rights, but that does not mean the state cannot
prohibit killing them: It does not even mean the state cannot
prohibit killing them in the exercise of the First Amendment right
of political protest.
Id. It has further been noted modern adherence to the viability distinction
occurred “outside the ordinary course of litigation, is and always has been
completely unreasoned, and fails to take account of state interests since
recognized as legitimate.” Dobbs, 142 S.Ct. at 2312 (Roberts, C.J., concurring).
The Kentucky precedent identified by the trial court does not support an
implied constitutional right to abortion. Therefore, the trial court’s reliance on
Wasson and Mitchell to cast doubt on the constitutionality of the abortion bans
was misplaced and an abuse of discretion.
In Counts 3 and 4 of the complaint, Appellees asserted the trigger ban
violated the nondelegation provisions contained in Sections 27, 28, 29, and 60
132
of the Kentucky Constitution. The trial court, however, failed to apply the
appropriate legal standard to support its conclusion that there was a
substantial question on the merits of whether the trigger ban constituted an
unconstitutional delegation of legislative authority. The trial court cited Diemer
v. Commonwealth, Transportation Cabinet, Dept. of Highways, 786 S.W.2d 861,
865 (Ky. 1990), for the general proposition that the General Assembly cannot
delegate any portion of its legislative power to another authority. However, the
trial court failed to apply the proper analysis to distinguish between
permissible and non-permissible delegations.
This Court has explained the analytical framework for non-delegation
challenges as follows:
[W]e have upheld the principle that the General Assembly cannot
delegate any portion of the legislative function to another
authority. The legislative scheme must be essentially complete on
its face, leaving to regulatory authority administrative rather than
policy decisions. The “delegation of discretion is not unlawful” only
“if sufficient standards controlling the exercise of that discretion
are found in the act.”
Id. (citation omitted). This Court has further recognized the decisions of our
sister states and the federal courts may be properly considered as persuasive
authority in construing the extent of the separation of powers as provided by
Sections 27 and 28 of the Kentucky Constitution. Legislative Rsch. Com’n By
and Through Prather v. Brown, 664 S.W.2d 907, 914 (Ky. 1984).
The trigger ban appears to be a variety of contingent legislation, which
are generally upheld in the face of non-delegation challenges. The United
States Supreme Court has explained:
133
Congress may feel itself unable conveniently to determine exactly
when its exercise of the legislative power should become effective,
because dependent on future conditions, and it may leave the
determination of such time to the decision of an executive, or, as
often happens in matters of state legislation, it may be left to a
popular vote of the residents of a district to be affected by the
legislation. While in a sense one may say that such residents are
exercising legislative power, it is not an exact statement, because
the power has already been exercised legislatively by the body
vested with that power under the Constitution, the condition of its
legislation going into effect being made dependent by the
Legislature on the expression of the voters of a certain district.
Hampton Co v. United States, 276 U.S. 394, 407 (1928). The Supreme Court
distinguished between “the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in
pursuance of the law.” Id. (quoting Cincinnati, Wilmington & Zanesville Railroad
Co. v. Commissioners, 1 Ohio St. 77, 88 (1852)). In other words, a delegation of
power to make the law is vulnerable to constitutional challenge while “no valid
objection can be made” to a delegation of discretion concerning the execution of
the law. Id. The views of our sister states on this issue are largely in accord.
The Supreme Court of Washington succinctly expressed the rule that the
legislature possesses the constitutional authority to “say definitely when an act
shall take effect, or it may fix an indefinite time in the future upon the
happening of some event before the act shall take effect.” State v. Storey, 51
Wash. 630, 632, 99 P. 878 (1909).
Once again, cases cited by the trial court are distinguishable from the
circumstances of the present appeal. In Diemer, we held it was
134
unconstitutional for the legislature to delegate the power to create the statutory
definition of a key term used in a statute. In Dawson v. Hamilton, 314 S.W.2d
532, 536 (Ky. 1958), the former Court of Appeals held it was an
unconstitutional delegation of power for the General Assembly to adopt, in
advance, federal time standards that were yet to be determined by a federal
agency.
By contrast, the substantive terms of the trigger ban are complete. By its
plain terms, the trigger ban neither adopts the federal law as the law of
Kentucky nor does it allow another body to determine for itself the law or
public policy of Kentucky. Nor is it plainly evident the legislature abandoned
its “continuing duty” to determine “[w]hat conduct shall in the future constitute
a crime in Kentucky . . . in view of the then existing conditions when the need
for such a statute arises.” Id. The trigger ban was enacted in 2019 and the
statute merely fixes an indeterminate time for the law to take effect. Thus, the
trial court abused its discretion by failing to consider the well-established
distinction between impermissible delegations involving the power to make law
and permissible delegations involving a law’s effective date.
In Counts 5 and 6 of the complaint, Appellees asserted the trigger bans
were unconstitutionally vague and unintelligible because of insufficient notice
and clarity concerning the effective date of the statute. Appellees specifically
argued the trigger ban was unconstitutional because it did not specify whether
it would become effective on June 24, 2022, when the United States Supreme
Court entered the judgment in Dobbs, or twenty-five days later on July 19,
135
2022, when the mandate issued. In either case, however, it is now well-past
both of those dates and the trigger ban would be in effect in either instance. As
previously stated in my analysis regarding first-party standing, the claims of
vagueness and unintelligibility are now moot because any ambiguity
concerning the effective date of the statute has been resolved by the passage of
time. See Louisville Transit Co. v. Dep’t of Motor Transp., 286 S.W.2d 536, 538
(Ky. 1956) (“where, pending an appeal, an event occurs which makes a
determination of the question unnecessary or which would render the
judgment that might be pronounced ineffectual, the appeal should be
dismissed.”). Moot claims cannot support the issuance of a temporary
injunction.
The substantial question analysis under the third and final Maupin
factor should have been limited to the claims raised by Appellees in their
complaint. However, the trial court sua sponte raised additional equal
protection and free exercise of religion challenges. It is inappropriate for a trial
court to inject unraised constitutional challenges on a motion for temporary
injunction. See Stuart Hall Co., 51 F.3d at 791; Cincinnati Bengals, 453
F.Supp. at 145. Further, as discussed below, the trial court abused its
discretion by improperly analyzing the unraised claims.
In his concurring opinion in Dobbs, Chief Justice Roberts warned “of the
perils of deciding a question neither presented nor briefed.” 142 S.Ct. at 2311
(Roberts, C.J., concurring). Nevertheless, in the present appeal, the trial court
attempted to justify its injection of unraised constitutional issues on a motion
136
for temporary injunction by invoking “the duty of courts to consider all legal
aspects when evaluating cases.” See Community Financial Services Bank v.
Stamper, 586 S.W.3d 737, 741 (Ky. 2019). The pertinent rule was aptly
described by this Court as follows:
Ordinarily, this Court confines itself rather closely to deciding only
those issues which the parties present. We take the view that
counsel and the courts below have sufficiently identified the
issues; that we need not redefine the question in the last stage of
the litigation. However, we are constrained by no rule of court or
constitutional provision to observe this procedure, and on rare
occasions, the facts mandate a departure from the normal practice.
When the facts reveal a fundamental basis for decision not
presented by the parties, it is our duty to address the issue to
avoid a misleading application of the law.
Mitchell, 816 S.W.2d at 185. However, the rationale set forth by the decisions
cited by the trial court are not applicable at the temporary injunction stage
because all cited decisions involved appellate review from a final judgment.
Further, the present facts do not reveal a fundamental basis for the trial
court’s decision. On the contrary, the trial court failed to apply the doctrine of
constitutional avoidance, which requires courts to refrain from deciding
constitutional questions unless absolutely necessary. Baker v. Fletcher, 204
S.W.3d 589, 597-98 (Ky. 2006). This doctrine applies to declaratory judgment
proceedings just as in any other case. Id. Further, in addressing unraised
arguments, the trial court bypassed the rule that, on a motion for temporary
injunction, the scope of review should be confined to the issues raised by the
pleadings. Devose v. Harrington, 42 F.3d 470, 471 (8th Cir. 1994). Therefore,
the trial court abused its discretion by raising novel constitutional challenges,
137
sua sponte, on a motion for temporary injunction. See also Stuart Hall Co., 51
F.3d at 791.
Moreover, after improperly injecting unraised constitutional issues, the
trial court misapplied the legal standards for evaluating equal protection and
free exercise claims. Again, my analysis of these issues is limited to the
propriety of the temporary injunction and does not, in any way, reflect a final
determination on whether the Kentucky Constitution implies a right to
abortion.
Regarding the trial court’s equal protection analysis, while the trial court
correctly noted the right of equal protection under the Kentucky Constitution is
co-extensive with the United States Constitution, the trial court completely
ignored the reasoning of the former Court of Appeals in Sasaki, which rejected
an equal protection challenge to the constitutionality of Kentucky’s former
abortion statute. Sasaki, 485 S.W.2d at 903. The trial court also ignored
applicable precedent of the United States Supreme Court, which rejected the
contention that the regulation of abortion constitutes invidious discrimination
against women on the basis of sex. Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 273-74 (1993). The Supreme Court properly framed the issue of
whether abortion restrictions constitute discrimination on the basis of sex as
follows:
“While it is true,” we said, “that only women can become pregnant,
it does not follow that every legislative classification concerning
pregnancy is a sex-based classification.” . . . “‘Discriminatory
purpose,’” . . . “implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker ...
selected or reaffirmed a particular course of action at least in part
138
‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”
Id. at 271-72. Governmental disfavor of abortion is simply “not ipso facto
sex discrimination.” Id. at 273. The Supreme Court further recognized:
Whatever one thinks of abortion, it cannot be denied that there are
common and respectable reasons for opposing it, other than hatred
of, or condescension toward (or indeed any view at all concerning),
women as a class—as is evident from the fact that men and women
are on both sides of the issue.
Id. at 270. Because the trial court failed to apply the appropriate legal
standard and failed to consider relevant precedent, the trial court abused its
discretion by determining a substantial question existed on equal protection
grounds.
Finally, regarding the claims raised sua sponte based on free exercise of
religion and the anti-establishment of religion, the trial court erroneously
concluded the Kentucky Constitution provides greater protection than the
Federal Constitution. On the contrary, this Court has directly held that the
free exercise clause of the Kentucky Constitution is co-extensive with the free
exercise clause of the United States Constitution. Gingerich v. Commonwealth,
382 S.W.3d 835, 839 (Ky. 2012). If statutes providing for the public health are
generally applicable and only incidental to the practice of religion, then they
“are properly reviewed for a rational basis under the Kentucky Constitution, as
they are under the federal constitution.” Id. at 844.
The United States Supreme Court has clearly rejected an establishment
challenge to federal regulations prohibiting the funding of abortion because
139
such regulations were “as much a reflection of ‘traditionalist’ values towards
abortion, as it is an embodiment of the views of any particular religion.”
Harris, 448 U.S. at 319. The Supreme Court reasoned, “it does not follow that
a statute violates the Establishment Clause because it ‘happens to coincide or
harmonize with the tenets of some or all religions.’” Id. The Supreme Court
further cogitated, “[t]hat the Judeo-Christian religions oppose stealing does not
mean that a State or the Federal Government may not, consistent with the
Establishment Clause, enact laws prohibiting larceny.” Id. Additionally, the
trial court erroneously ignored or overlooked our predecessor Court’s wholesale
rejection of an establishment challenge to Kentucky’s former abortion statute,
wherein it clearly stated:
It is asserted that the sole justification for abortion statutes is that
there is something human to protect. However, it is suggested that
the determination of what is human—that is then the embryo or
fetus becomes human—is in essence a theological question not to
be resolved by the State. For the State to assume that the embryo
is human is, it is claimed, tantamount to an unconstitutional
establishment of religion.
This argument is simply not of constitutional
proportions. It may be that the precise determination
of when the embryo or fetus becomes a human life in
being, is . . . a question beyond judicial competence,
however, we believe that no such determination is
essential for a constitutional justification of the
statute. The State is certainly competent to recognize
that the embryo or fetus is potential human life, and it
is the State’s compelling interest in potential human
life that justifies the statute.
Sasaki, 485 S.W.2d at 903 (internal quotation omitted). Therefore, the trial
court again abused its discretion by failing to apply the appropriate legal
140
standards relative to free exercise and establishment challenges it raised sua
sponte.
E. CONCLUSION
In conclusion, novel and controversial constitutional issues must be
timely, intentionally, and reasonably decided by courts in the proper case and
in the proper course. Judicial review must be consistently exercised in
accordance with authentic and unwavering legal precedent and procedural
rules, which serve as “lights and buoys to mark the channels of safe passage
and assure an expeditious voyage to the right destination.” Brown v.
Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977). Not even oscillating
perceptions of urgency attached to a particular constitutional question justify
the abandonment of ancient and authoritative legal principles. This Court
described the primacy of procedural rules as follows:
Substantive rights, even of constitutional magnitude, do not
transcend procedural rules, because without such rules those
rights would smother in chaos and could not survive. There is a
simple and easy procedural avenue for the enforcement and
protection of every right and principle of substantive law at an
appropriate time and point during the course of any litigation, civil
or criminal. That is not to say that form may be exalted over
substance, because procedural requirements generally do not exist
for the mere sake of form and style.
Id. Rules of jurisdiction, construction, and procedure do not exist to thwart the
administration of justice. On the contrary, these bedrock principles promote
stability in the law and the integrity of judicial decision-making. See Ready v.
Jamison, 705 S.W.2d 479, 482 (Ky. 1986) (Vance, J., dissenting) (“there is no
141
more important principle in law than the principle that rules of law should be
uniformly applied.”).
Had the trial court simply applied this Court’s precedents on standing
and otherwise enforced the plain terms of CR 65.04 by requiring Appellees to
demonstrate a clear violation of their personal rights, the inquiry should have
been ended and the complaint dismissed. Instead, because the question of
whether the right to abortion exists by implication under the Kentucky
Constitution remains to be judicially determined, the trial court ill-advisedly
resorted to policy arguments, novel and unraised constitutional theories,
erroneous legal analysis, and raw judicial power to circumvent the otherwise
legitimate exercise of the General Assembly’s co-equal constitutional authority.
In doing so, the trial court abused its discretion because the issuance of the
temporary injunction was unsupported by sound legal principles, and as a
result, the temporary injunction must be vacated, and this action must be
dismissed for lack of standing.
I do not discount the potential impacts of my decision. However, these
legitimate concerns cannot be allowed to alter my view of the applicable law,
and once more I echo the words of my predecessor, Justice Vance, who said:
I firmly believe that an appellate court should adhere to long-
established precedent unless there is some urgent or compelling
reason to depart therefrom which destroys or completely
overshadows the reason behind the precedent.
Curry v. Fireman’s Fund Ins. Co., 784 S.W.2d 176, 179 (Ky. 1989) (Vance, J.,
dissenting). The fair and consistent application of the law requires judges to
exercise humility and discipline, otherwise, “the law becomes subject to
142
personal preferences and hence shrouded in doubt.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 262 (2012). Justice
Brandeis wisely articulated the quintessential principle that I believe this Court
would have done well to follow today:
The fact that it would be convenient for the parties and the public
to have promptly decided whether the legislation assailed is valid,
cannot justify a departure from these settled rules of . . . law and
established principles of equity practice. On the contrary, the fact
that such is the nature of the enquiry proposed should deepen the
reluctance of courts to entertain the . . . suit. ‘It must be evident
to any one that the power to declare a legislative enactment void is
one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath
decline the responsibility.’
Ashwander, 297 U.S. at 345 (Brandeis, J., concurring).
Application of well-established Kentucky precedent compels dismissal of
the complaint without regard to the merits of the temporary injunction or the
underlying constitutional challenge. Because Appellees have failed to establish
either first-party or third-party standing for each of their claims, the entire case
should be dismissed without prejudice.
***
THOMPSON, J., CONCURRING IN PART, DISSENTING IN PART: I concur in
the majority opinion that first party standing was established for the abortion
providers and dissent from its conclusion that they lacked third party standing.
I believe we should err on the side of finding standing when at all possible, so
that parties can gain needed review.
143
Accordingly, I urge the trial court to fully exercise its authority on
remand by freely allowing intervention by all interested parties so that first
party standing may be established for all issues. In this manner, review of both
bans can take place. I also urge the trial court to engage in an expedited
process to move this case forward.
Once a full evidentiary process has concluded and the trial court has
made a decision on the merits, the appealing parties should seek immediate
transfer to this Court as this matter will then be ripe for us to engage in a
complete review. It is frustrating that we cannot reach the ultimate issues at
this juncture, but in light of the current posture of the case, we must return
the matter to the trial court to resolve expeditiously. We can then engage in a
full review of the constitutionality of these statutes, as soon as reasonably
possible.
***
144
COUNSEL FOR DANIEL CAMERON,
IN HIS CAPACITY AS ATTORNEY GENERAL
OF THE COMMONWEALTH OF KENTUCKY:
Courtney Elizabeth Albini
Assistant Attorney General
Daniel John Grabowski
Assistant Attorney General
Harrison Gray Kilgore
Assistant Attorney General
Matthew Franklin Kuhn
Assistant Attorney General
Alexander Y. Magera
Assistant Attorney General
Michael Robert Wajda
Assistant Attorney General
COUNSEL FOR EMW WOMEN’S SURGICAL CENTER,
P.S.C., ON BEHALF OF ITSELF, ITS STAFF AND
ITS PATIENTS:
Michele Diane Henry
Craig Henry, PLC
Brigitte Amiri
American Civil Liberties Union
Carrie Flaxman
Planned Parenthood Federation of America
Heather Lynn Gatnarek
ACLU of Kentucky
Leah Godesky
O’Melveny & Myers, LLP
Chelsea Tejada
American Civil Liberties Union
145
Kendall Turner
O’Melveny & Myers, LLP
COUNSEL FOR ERIC FRIEDLANDER, IN HIS
OFFICIAL CAPACITY AS SECETARY OF
KENTUCKY’S CABINET FOR HEALTH AND
FAMILY SERVICES:
Wesley Warden Duke
CHFS Office of Legal Services
COUNSEL FOR ERNST MARSHALL, MD, ON
BEHALF OF HIMSELF AND HIS PATIENTS:
Michele Diane Henry
Craig Henry, PLC
Brigitte Amiri
American Civil Liberties Union
Carrie Flaxman
Planned Parenthood Federation of America
Heather Lynn Gatnarek
ACLU of Kentucky
Leah Godesky
O’Melveny & Myers, LLP
Chelsea Tejada
American Civil Liberties Union
Kendall Turner
O’Melveny & Myers, LLP
COUNSEL FOR PLANNED PARENTHOOD GREAT
NORTHWEST, HAWAI’I, ALASKA, INDIANA AND
KENTUCKY, INC., ON BEHALF OF ITSELF, ITS
STAFF, AND ITS PATIENTS:
Michele Diane Henry
Craig Henry, PLC
146
COUNSEL FOR MICHAEL S. RODMAN, IN
HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
OF THE KENTUCKY BOARD OF MEDICAL LICENSURE:
Leanne Kittrell Diakov
Assistant General Counsel
COUNSEL FOR THOMAS B. WINE, IN HIS OFFICIAL
CAPACITY AS COMMONWEALTH’S ATTORNEY
FOR THE 30TH JUDICIAL CIRCUIT OF KENTUCKY:
Jason Bradley Moore
Thomas Benedict Wine
COUNSEL FOR ALEPH, ALLIANCE FOR
JEWIS RENEWAL, AMEINU, ANTI-DEFAMATION
LEAGUE (ADL), AUBURN SEMINARY, CATHOLICS
FOR CHOICE, HADASSAH, THE WOMEN’S ZIONEST
ORGANIZATION OF AMERICA, INC., JEWISH COUNCIL
FOR PUBLIC AFFAIRS, JEWISH EMERGENT NETWORK,
JEWISH ORTHODOX FEMINST ALLIANCE,
JEWISH WOMEN INTERNATIONAL (JWI), JEWS FOR A
SECULAR DEMOCRACY; KARAMAH, KENTUCKY
RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE,
KESHET, METROPOLITAN COMMUNITY CHURCHES,
MUSLIMS FOR PROGRESSIVE VALUES, MUSLIN WOMEN
LAWYERS FOR HUMAN RIGHTS, NATIONAL COUNCIL OF
JEWISH WOMEN, RABBINICAL ASSEMBLY,
RECONSTRUCTIONIST RABBINICAL ASSOCATION,
RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE (RCRC),
SACRED (SPIRITUAL ALLIANCE OF COMMUNITIES FOR
REPRODCUTIVE DIGNITY), SOCIETY FOR HUMANISTIC JUDAISM,
T’RUAH, THE FELLOWSHIP OF AFFIRMING MINISTRIES,
THE RABBINIC CALL FOR HUMAN RIGHTS, THE SHALOM CENTER,
WOMAN’S RABBINIC NETWORK, WOMEN OF REFORM JUDAISM;
WOMEN’S ALLIANCE FOR THEOLOGY, ETHICS, AND
RITUAL(WATER), AND ZIONESS; AMICUS BRIEF:
Kevin Crosby Burke
Burke Neal PLLC
147
Eugene Martin Gelernter
Patterson, Belknap, Webb & Tyler, LLP
Hilarie M. Meyers
Patterson, Belknap, Webb & Tyler, LLP
Jamie Kristin Neal
Burke Neal PLLC
Elana M. Stern
Patterson, Belknap, Webb & Tyler, LLP
COUNSEL FOR AMERICAN ACADEMY OF
FAMILY PHYSICIANS, AMERICAN COLLEGE OF
OBSTETRICIANS AND GYNOCOLOGISTS,
AMERICAN COLLEGE OF PHYSICIANS, AND
AMERICAN MEDICAL ASSOCIATION AMICUS BRIEF:
Michael Patrick Abate
Kaplan Johnson Abate & Bird LLP
COUNSEL FOR AMERICAN CENTER FOR
LAW AND JUSTICE, AMICUS BRIEF:
Frances James Manion
COUNSEL FOR BSIDEU FOR LIFE PREGNANCY &
LIFE SKILLS and PREGNANCY HELP CENTER MEDICAL
CLINIC; AMICUS BRIEF:
John Nathanael Billings
Billings Law Firm, PLLC
COUNSEL FOR DEMOCRATS FOR LIFE OF
AMERICA:
Benjamin Hachten
Oldfather Law Firm
COUNSEL FOR FREDERICK DOUGLASS FOUNDATION:
Anthony Charles Donahue
Donahue Law Group PSC
148
COUNSEL FOR HEARTBEAT INTERNATIONAL, INC.:
Matthew Daniel Doane
Doane & Elliott PSC
COUNSEL FOR KENTUCKY RIGHT TO LIFE ASSOCIATION:
Thomas Bernard Bruns
Bruns Connell Vollmar & Armstrong
Christopher David Wiest
COUNSEL FOR MAUREEN. L. CONDIC, PH.D. AND THE
CHARLOTTE LOZIER INSTITUTE:
Bryan Howard Beauman
Sturgill, Turner, Barker & Moloney, PLLC
Scott D. Goodwin
Schaerr, Jaffe LLP
Gene C. Schaerr
Schaerr, Jaffe LLP
Christina M. Squiers
Schaerr, Jaffe LLP
COUNSEL FOR NATIONAL HISPANIC CHRISTIAN
LEADERSHIP CONFERENCE:
Anthony Charles Donahue
Donahue Law Group PSC
COUNSEL FOR REPRESENTATIVE NANCY TATE AND
SENATOR ROBBY MILLS, IN THEIR OFFCIAL CAPACITIES
AS CO-CHAIRS OF THE KENTUCKY GENERAL ASSEMBLY
PRO-LIFE CAUCUS:
Jean Winfield Bird
David Earl Fleenor
149
COUNSEL FOR SIXTEEN RELIGIOUS AND CIVIL-RIGHTS
ORGANZIATIONS:
John Saoirse Friend
Friend Law, PSC
Richard B. Katskee
Americans United for Separation of Church and State
Kenneth D. Upton
COUNSEL FOR SOCIETY FOR MATERNAL-FETAL MEDICINE:
Michael Patrick Abate
Kaplan Johnson Abate & Bird LLP
COUNSEL FOR THE FAMILY FOUNDATION:
John Nathanael Billings
Christopher E. Mills
Spero Law LLC
COUNSEL FOR THE PROFILE CENTER AT ST. THOMAS
MORE UNIVERSITY (MN):
Teresa S. Collett
John David Hershberger
Hershberger Law Office
150