LOUISVILLE, Ky.– A two-year-old lawsuit challenging a buffer zone outside a Kentucky abortion clinic is moving forward despite an effort to dismiss the case.
The legal battle predates both the Supreme Court’s Dobbs v. Jackson decision that repealed Roe v. Wade and the enforcement of Kentucky’s abortion ban, and centers around the constitutionality of a 2021 Louisville city ordinance. Ordinance O-179-21 prohibits people from entering or obstructing a 10-foot-wide buffer zone in front of healthcare facilities; that includes EMW Women’s Surgical Center, once one of two abortion providers in the Bluegrass state.
The abortion clinic is, to date, the only facility that has requested the buffer zone be marked and subsequently enforced by police.
Sidewalk counselors—plaintiffs Angelia Minter, Sisters for Life, Kentucky Right to Life, Edward Harpring and Mary Kenney—who ministered outside the clinic sued Louisville Metro government and the mayor, police chief and district attorney at the time of the ordinance’s passing, asserting that it was unconstitutional and a violation of the free speech, freedom of assembly and free exercise clauses of the First Amendment, as well as the Kentucky Religious Freedom Restoration Act. That was on June 7, 2021.
While a lower court refused to block the ordinance’s enforcement, the Sixth Circuit Court of Appeals later ordered a preliminary injunction on Dec. 21, 2022, barring the city’s government from enforcing the ordinance until the merits of the sidewalk counselor’s claims could be tried.
On March 30, Western District Court Judge Rebecca Grady Jennings denied the motion of defendants to dismiss and remanded the plaintiffs’ motions for summary judgment pending a hearing that would explore the merits of the case.
The ruling followed up on an Oct. 11, 2023, evidentiary hearing to determine mootness, where defendants said the sidewalk counselors’ claims are moot now that abortion is illegal in Kentucky and EMW is no longer providing abortions.
“Defendants focus on the ‘amendment’ of abortion law in Kentucky” in their push for dismissal, Jennings wrote. “This confuses the law at issue in the case. Plaintiffs do not challenge the legality of abortion in Kentucky. The Ordinance does not speak of abortion at all — it applies to healthcare facilities of every type.”
Jennings also acknowledged in her late March ruling that, considering the facts of the case look different in 2024 than 2021, the claims of the sidewalk counselors may be weaker now.
“…Many of Plaintiffs’ chief complaints about the environment outside of EMW no longer exist. Such arguments may very well undercut the merits of Plaintiffs’ claims — but it does not moot them,” she wrote.
