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|EMW WOMEN’S SURGICAL 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 OF INDIANA AND KENTUCKY,
ERIC FRIEDLANDER, in his official capacity as
Secretary of Kentucky’s Cabinet for Health and
Family Services; ANDREW G. BESHEAR, Governor of
Kentucky, in his official capacity,
DANIEL J. CAMERON, Attorney General of the
Commonwealth of Kentucky,
| No. 18-6161|
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:17-cv-00189—Gregory N. Stivers, District Judge.
Argued: August 8, 2019
Decided and Filed: October 16, 2020
Before: CLAY, LARSEN, and READLER, Circuit Judges.
LARSEN, Circuit Judge. Two decades ago, the Kentucky General Assembly enacted a
law requiring abortion facilities to obtain transfer agreements with a local hospital and transport
agreements with a local ambulance service. Ky. Rev. Stat. (KRS) § 216B.0435. Regulations
promulgated in 2017 imposed stricter conditions on the agreements but also allowed successive,
ninety-day waivers for facilities unable to comply with the law. 902 Ky. Admin. Regs. (KAR)
20:360 § 10. The plaintiffs in this case, who were, at the time, Kentucky’s only licensed
abortion facility, its owner, and another facility seeking licensure, challenged the transfer- and
transport-agreement requirements as imposing an undue burden on abortion access. The
plaintiffs argued that it had become impossible for them to obtain the required agreements, and
that the law’s enforcement would leave Kentucky without a licensed abortion facility, thereby
No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 3
eliminating abortion access in the Commonwealth. Agreeing with the plaintiffs, the district court
held that Kentucky’s requirements were facially invalid and permanently enjoined them.
Kentucky appeals the permanent injunction, arguing, among other things, that the
plaintiffs failed to show that the law would in fact leave the Commonwealth without a licensed
facility, because a facility unable to obtain the required agreements could still obtain a waiver.
Kentucky also appeals the district court’s order imposing monetary sanctions for failure to
produce a designee for a properly noticed deposition. We conclude that the district court did not
abuse its discretion by imposing monetary sanctions, so we AFFIRM in part. But because the
district court erred in concluding that Kentucky would be left without an abortion facility, we
REVERSE in part, VACATE the permanent injunction, and REMAND for further proceedings.