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ACLU lawyer on the fight against Kentucky's new anti-abortion law

SARAH MCCAMMON, HOST:

There is currently nowhere in the state of Kentucky to get an abortion after a unique new law took effect last week. Reproductive rights groups say the legislation was designed to be extremely difficult for abortion providers to comply with. Democratic Governor Andy Beshear vetoed the law, but state lawmakers then voted to override that veto. The law took effect immediately under an emergency provision. Reproductive rights groups, including the American Civil Liberties Union, are challenging it in federal court. Heather Gatnarek is a lawyer with the ACLU of Kentucky, and she joins us now. Welcome to the program.

HEATHER GATNAREK: Thank you, Sarah. Nice to be here.

MCCAMMON: So this new law, known as HB 3, it's not just a straightforward abortion ban, right? What exactly does it do?

GATNAREK: That's correct. Part of this law is a straightforward 15-week ban on abortion, similar to the law that is currently being challenged out of Mississippi and which the Supreme Court is currently considering. But in addition to that, House Bill 3 included over 60 pages of unnecessary regulatory changes and requirements that are simply impossible to comply with until the state of Kentucky takes certain steps to implement programs and forms and make those requirements available. So at the moment, there is simply no way to comply with these changes, and yet the bill took effect immediately. So providers had to stop providing until we get a court order allowing them to proceed without enforcement of this law.

MCCAMMON: Now, there are essentially two major categories of different types of abortions - medication abortion with pills - right? - and then surgical procedures of various types. And this law targets both, right? I mean, how does it work?

GATNAREK: Yeah, that's correct. So parts of the bill make it, at this point, impossible to provide medication abortion because the law requires that providers are, for instance, registered with the state, certified with the state as providers who can dispense medication abortions. That program doesn't exist yet, so there's no way for providers to be certified at the moment. Similarly, there are other forms required that would apply to all abortions, including the sort of regular reporting form that gets submitted to the state for each procedure.

The new form doesn't exist yet. The penalties range widely throughout many of these provisions. Again, the bill itself is 72 pages, so we're talking about a number of different requirements here. And the penalties range from criminal liability, you know, Class D felonies, which in Kentucky is punishable by one to five years, financial penalties of tens of thousands, hundreds of thousands of dollars. And some of the provisions include mandatory loss of licensure.

MCCAMMON: So what are abortion providers in Kentucky doing at this point? How are they responding?

GATNAREK: Well, at the moment, they are not providing abortions in Kentucky. That is, there are only two providers in the state anyway. Both of them are located in Louisville, and both of them have stopped providing while the two simultaneous court challenges have been filed in the courts and we're awaiting injunctive relief. We hope to get that soon. My client, EMW, would like to continue seeing patients this week. They've got appointments scheduled that may need to be canceled if we don't have injunctive relief from the court. So we're hoping that we get an injunction in short order and EMW can continue providing this care.

MCCAMMON: You're referring to the EMW Women's Surgical Center, which is an abortion provider in Louisville and is your client, right?

GATNAREK: That's correct, yes.

MCCAMMON: What are you hearing from your client about the situation that their patients are facing right now?

GATNAREK: Well, this, of course, is incredibly distressing. EMW has been providing abortions to people in Kentucky for decades, and they provide the majority of abortions in the state. EMW always has people coming to them from around Kentucky and beyond our borders. People from other states come here as well. And to have to say no to those patients and force them to go even farther away for care is just incredibly upsetting to the doctors and the other staff at the clinic for whom this is their - you know, their life's calling. There's going to be a lot of people who just simply don't have the ability and the resources to leave the state to get abortions elsewhere. But that is, at this moment, the only choice and the only option that our providers can offer patients.

MCCAMMON: Now, supporters of this law, abortion rights opponents, say these rules are designed to protect women's health, these new regulations. How do you respond to that?

GATNAREK: Abortion, of course, is already just about the most heavily regulated procedure in Kentucky. And the types of changes being made here to the regulations and the requirements are simply unnecessary given how much oversight already exists over this type of care and how safe it really is. The types of changes we're talking about here are things like requiring additional information about patient's family situations and medical histories to be included in the reports that get filed with the state for each and every abortion. That does not increase a patient's health or safety. It is simply a regulatory requirement put in the way to try to make it harder to access abortion.

MCCAMMON: All eyes are on the Supreme Court with that major abortion case, that major abortion decision expected this summer. But already we've seen that Texas has managed to functionally ban many, if not most, abortions in that state because of the unique law there that has an unusual enforcement scheme. Now Kentucky lawmakers have managed to shut down abortion, even without the Supreme Court overturning Roe v. Wade. What do you see as the significance of this trend that we're seeing, again, even before the Supreme Court has fully weighed in on this precedent?

GATNAREK: It's incredibly shameful what states like Kentucky and Texas have been doing to push abortion access so far out of reach of people within their states. I think that what anti-abortion legislators miss is that there are any number of reasons that people may need to access abortions. Those reasons are not going away.

MCCAMMON: I guess what I'm asking is, how much does it matter what the Supreme Court says this summer, given that we're seeing that states have found ways to essentially shut down most abortions with or without the Supreme Court weighing in?

GATNAREK: Right. And, you know, the sad reality of that is, I suppose, that it may embolden other states beyond the extreme actions of Kentucky and Texas at this point. It may embolden other states to outright prohibit abortion as well, which would really mean that we would just have swaths of the country where people can't access abortion care at all. That's a real tragedy, I think, for people in this country across the board. And we'll just have to wait to see exactly how it plays out.

MCCAMMON: Heather Gatnarek is an attorney with the American Civil Liberties Union in Kentucky. Thanks so much for being with us.

GATNAREK: Thank you, Sarah. It was nice to speak with you. Transcript provided by NPR, Copyright NPR.