The federal hearing in the case continues Thursday with a legal showdown that pits the state against the EMW Women's Surgical Clinic. Both sides are trying to determine what does and does not limit a woman's constitutional right to have an abortion.

The high-stakes case could determine whether Kentucky becomes the first state in the US without an abortion clinic.

After receiving a notice from the state government last March that the clinic's abortion license was deficient, EMW Women's Surgical Center sued Kentucky Gov. Matt Bevin and state officials. The hearing began Wednesday.

When EMW Women's Surgical Center initially sued the governor, a federal judge granted the clinic a temporary restraining order so that it could stay open until a judge ruled in the case. If the judge rules to uphold the government's regulations of the clinic, Kentucky will become the first state in the country without an open abortion clinic.

Access to abortion is already tenuous in the state. In January, the state legislature passed two new laws regulating abortions: The first made it illegal for women to get abortions at or after 20 weeks of pregnancy. The second requires women to obtain and view an ultrasound before having an abortion.

While EMW Women's Surgical Center in Louisville is now the sole abortion provider for the state, the other major clinic in neighboring Lexington closed in January after it was also denied an abortion license from the state government.

An undue burden

Attorneys representing the surgical center, including lawyers from the American Civil Liberties Union and Planned Parenthood, argued that the state's regulations "impose an undue burden" on a woman's constitutional right to an abortion. These regulations are what the Kentucky government cites as the reason for revoking the clinic's abortion license.

Kentucky requires that abortion clinics have both a transfer agreement with a hospital at a reasonable distance from the clinic and a transport agreement with an ambulance provider in order to obtain a license to provide abortions. This policy has been in place since 1998. EMW Women's Surgical Center has complied with this policy in the past. Its license was initially approved through June 2017. Then, in March, the clinic received a notice from the Kentucky office of the Inspector General informing it that its agreements were "deficient." The letter said the signature on the agreement with the hospital was "not authorized" and did not offer "certainty" that a patient would receive a medically appropriate transfer in case of an emergency.

Attorney Don Cox, representing EMW Women's Surgical Center, relied heavily on the Supreme Court's 2016 decision in Whole Women's Health vs. Hellerstedt in his argument that the regulations are unconstitutional. In that decision, the Supreme Court ruled that in order for a medical regulation of abortions to be enforced, there needed to be proof that the burden of imposing the regulation outweighed the burden it would impose on a woman's right to have an abortion.

Cox argued that, in this case, the burden of imposing the state's transfer and transport agreements statute far outweighs the benefit to women's health. Cox and other attorneys representing EMW stated there is no evidence, medical or otherwise, that these agreements improve women's health. The agreements, Cox argued, are redundant because federal law requires that emergency rooms and ambulances care for any patient in need.

"A transfer agreement is something made up out of old cloth in order to try to stop abortions in the state," Cox said after the first day of court adjourned. "It's not a regular kind of medical protocol that is normally used."

For women's health

Bevin's attorney, Steve Pitt, argued that the case is not about whether women in Kentucky have the right to an abortion, but whether and to what extent Kentucky has the right to regulate abortion. He claimed the transfer and transport agreements were put in place to keep women safe in the event that complications arise while a woman is being treated at an abortion clinic.

Pitt referenced a district court decision, WMPC vs. Baird, from Ohio in which a federal judge ruled that traveling to another city, including one outside of a woman's home state, in order to have an abortion does not infringe on a woman's constitutional right to an abortion.

He used a series of large maps to show that even if EMW Women's Surgical Center closed, women in Kentucky would still have access to abortions in cities in neighboring states. He said the maps showed that there is nowhere in Kentucky where women are not within 200 miles of an abortion facility in another state.

"In this day and age, even underprivileged people, most of them have iPhones and cars and can get where they need to go," Pitt said in his opening statement.

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Lawyers for the clinic countered that for many women, especially underprivileged women or women of a lower socio-economic standing, 200 miles is much too far. For some women, traveling outside of the state or even to a neighboring city adds extra costs of time off from work, childcare and travel expenses, on top of the abortion procedure fee.

"No court has allowed a state to shirk its constitutional responsibilities by pointing to a neighboring state," ACLU Attorney Brigitte Amiri said after court adjourned Wednesday. "We think it's completely improper for the state of Kentucky to rely on another state to provide care to patients when it's the constitutional duty of this Commonwealth to ensure that abortion facilities are not shut down for medically unjustified reasons."