UK HealthCare offers a program to treat pelvic floor disorders, providing up-to-date care and a better quality of life for women

The UK Urogynecology and Reconstructive Pelvic Surgery division is
(from left) Dr. Gerardo Heredia Melero; Briana Bell, advanced-practice
provider; and Dr. Johnnie Wright Jr. (UK photo by Carter Skaggs)

By Hilary Brown
University of Kentucky

A woman's pelvic floor, whether she realizes it or not, is constantly under stress. Pregnancy, obesity and physically demanding jobs can strain the pelvic-floor muscles, which are the network of tissues that support the intestines, bladder, urethra, rectum, cervix, uterus and vagina.

Those muscles are responsible for a number of functions, including controlling urination and bowel movements, as well as supporting the organs within the pelvis. A weak or dysfunctional pelvic floor can lead to a host of symptoms, ranging from occasional urinary incontinence to pelvic organ prolapse, which occurs when an organ in the pelvis slips down from its normal position.

UK HealthCare has a new subspecialty program to treat pelvic floor disorders called the Urognecology and Reconstructive Pelvic Surgery program. The providers are Dr. Gerardo Heredia Melero and Dr. Johnnie Wright Jr. and advance-practice provider Briana Bell. 

This team of experts in pelvic medicine and reconstructive surgery work with patients to develop a treatment plan; those treatments can be as simple as exercises or medications or as complex as robotic surgery.

“At UK HealthCare, we are among the few providers in Kentucky equipped to diagnose and treat common conditions that frequently go undiagnosed,” said Wright. He said the program offers "comprehensive and tailored treatments to women."

He said time is a factor because these disorders need to be addressed early before they are beyond the help of surgical intervention. “The majority of patients come to see us for the management of pelvic floor prolapse,” said Wright. “Probably 40 percent of them experience some degree of urinary dysfunction – either urgency, frequency or urge incontinence.”

Wright and Heredia identified a need for comprehensive care for patients who experienced complications during or after childbirth, both after delivery and years after the fact.

Many women experience urinary incontinence and other symptoms after having children but dismiss them as a normal aftereffect of pregnancy. Other risk factors, such as obesity and occupational hazards such as heavy lifting, can contribute pelvic floor stress. Over time, a weakened pelvic floor could lead to pelvic organ prolapse, which can involve a vaginal hernia. 

Other common symptoms of pelvic floor dysfunction include:

• A heavy dragging feeling in the vagina or lower back
• Feeling of a lump in the vagina or outside the vagina
• Urinary symptoms such as slow urinary stream, a feeling of incomplete bladder emptying, urinary frequency, urgency and urinary stress incontinence
• Bowel symptoms, such as difficulty moving the bowel or a feeling of not emptying properly
• Pain or discomfort during sexual intercourse

Those symptoms can lead to issues that go beyond the pelvic floor. Depression and anxiety are linked to urinary dysfunction; someone who feels they no longer can control their bladder may withdraw and become more socially isolated.

The first and arguably most important step in diagnosing and treating pelvic floor disorders is helping patients understand urinary incontinence is not normal, and that a better quality of life is possible, Wright said

“The greatest impact we can have is with education,” he said. “There’s a small subset, both in patients and referring providers, who believe that if there’s no pain and it’s not cancer, then there’s no reason to worry.”

Urogynecology has been a board-certified subspecialty for 11 years, but many providers have not had the opportunity to participate in a subspeciality fellowship or training. Additionally, Wright and Heredia say a number of patients they see have already had pelvic reconstruction surgery performed with materials and techniques that are no longer standard practice.

Wright and Heredia are working with referring providers throughout the state, spreading awareness of not just the specialized program at UK HealthCare, but about pelvic floor health in general. Surgery should be the last resort, Wright said; physical therapy, relaxation techniques, medication and targeted therapies can offer lasting relief.

“I call it ‘pelvic floor empowerment,’” said Wright. “We welcome anyone who is experiencing incontinence, discomfort or pain.”

Doctor at UK says you don't have to live with pelvic pain

Photo by Colorblind Images, DigitalVision / Getty Images Plus

By Dr. Johnnie Wright Jr.

University of Kentucky

Pelvic health is crucial to a woman’s overall well-being but is often misunderstood or overlooked. When symptoms such as urinary incontinence, pain or discomfort, or pain during intercourse occur, they are dismissed as a byproduct of pregnancy and childbirth or just something that comes with age like arthritis. But those symptoms can have a profound effect on a woman’s physical, emotional and social well-being and can lead to more serious complications if untreated.

One of the most common conditions is pelvic organ prolapse. This condition occurs when the muscles, ligaments and fascia of the pelvic floor weaken, causing one or more of the pelvic organs – uterus, vagina, bladder or bowel – bulges into or out of the vagina.

Symptoms of prolapse include:

• A heavy dragging feeling in the vagina or lower back
• Feeling of a lump in the vagina or outside the vagina
• Bowel symptoms, such as difficulty moving the bowel or a feeling of not emptying properly
• Pain or discomfort during sexual intercourse
• Urinary symptoms such as slow urinary stream, a feeling of incomplete bladder emptying, urinary frequency, urgency and urinary stress incontinence

Prolapse occurs in one of three women who have had one or more children. Prolapse can occur immediately after childbirth or take years to develop. Aging and menopause can lead to further weakening of the pelvic floor. While prolapse is common, only one in nine women need corrective surgery. Obesity, chronic cough, chronic constipation and heavy lifting or straining can put excessive pressure on the pelvic floor and exacerbate prolapse. Depression and anxiety are linked to urinary dysfunction; someone who feels they no longer can control their bladder may withdraw and become more socially isolated.

Physical therapy can help restore strength and function to the pelvic floor. Light-intensity exercises such as walking and yoga can stretch and strengthen the pelvic floor muscles, and there are a number of free apps with exercises for maintaining continence and preventing prolapse.

If you are experiencing pelvic pain or urinary issues such as urgency or a feeling of not completely emptying the bladder, talk to your primary care provider about a referral to a urogynecologist to discuss treatment options.

Johnnie Wright Jr., M.D., is division firector, Female Pelvic Medicine and Reconstructive Surgery, at UK HealthCare.

'Momnibus' bill to improve maternal health passes on final day, after being attached to another bill to avoid floor fight on abortion

Rep. Kim Moser presents SB 74
to the state House (Ky. LRC photo)

By Melissa Patrick and Al Cross
Kentucky Health News

On the last day of the 2024 legislative session, a bipartisan bill aimed at improving Kentucky's dismal maternal-mortality rate was finally passed, after parliamentary maneuvering to avoid divisive issues.

Provisions of House Bill 10, known as the "Momnibus" bill for its varied approach, were added to Senate Bill 74, a bill to require analysis of child and maternal fatalities and add reporting requirements.

The Momnibus bill, sponsored by Republican Rep. Kim Moser of Taylor Mill, came from an informal, bipartsan House-Senate workgroup of female legislators who tackled a big problem: the nation's second highest rate of death of mothers in the year following childbirth. 

From that came a multifaceted bill that ensures access to health-insurance coverage for pregnant women by adding pregnancy to the list of exceptions for enrollment outside the normal open-enrollment period, and several other things.

It establishes a mental-health hotline called Lifeline for Moms that allows providers access to an immediate mental-health consultation for a mother in need; expands the Health Access Nurturing Development Services (HANDS) home-visiation program and lets it be available up to three years after birth; covers lactation consultation and needed equipment to encourage breastfeeding; and will educate mothers on the benefits of safe sleep for infants. These services would also be available via telehealth.

Democratic Sen. Cassie Chambers Armstrong of Louisville told the Senate that Moser "brought together a bicameral, bipartisan group of women legislators and "This is a truly great piece of legislation that will absolutely save lives."

The final bill dropped controversial language that added by a Senate committee. It would have required all hospitals, birthing centers and midwives to refer patients to a perinatal palliative-care program if the patient had a prenatal diagnosis that indicated a "baby" might die before or after birth. Kentucky abortion law does not allow for the termination of such pregnancies, though it is considered a standard of care for a nonviable pregnancy.

Abortion prompted the parliamentary maneuvering. Democratic senators filed floor amendments to Moser's HB 10 to change "baby" to "fetus"; let a physician terminate a pregnancy if it is complicated by a fatal fetal anomaly, or in the good-faith belief that the pregnancy was caused by rape or incest. To avoid a Senate floor fight over the issue, Moser looked for another vehicle.

She found SB 74, sponsored by Sen. Shelley Funke Frommeyer, R-Alexandria, with an apt title. "I saw 'An act relating to maternal health'," she recalled. "It was germane, and apropos. . . . It works really well with the underlying bill."

Funke Frommyer said SB 74 was viewed favorbaly by a House committee, but didn't get a floor vote before legislators recessed to give Gov. Andy Beshear time to veto legislation and give them time to override his vetoes. Moser said the House considered the bill safe from a veto because it was non-controversial.

The original parts of SB 74 require the Cabinet for Health and Family Services to publish a report on its website for the most recent five years of available data on the number and types of delivery procedures for pregnancy by hospital.  It also has cleanup language for a number of health-cabinet programs.

The revised, combined bill passed the House 91-1, with Rep. Courtney Gilbert, R-Hodgenville, voting against it. On the House floor, Rep. Lindsey Burke, D-Lexington, praised the bill and Moser's work.

 "I have never been more delighted, proud or excited to vote for any single piece of legislation," Burke said. "It is a gift to the families of the commonwealth. I thank her for her hard work." 

The Senate agreed to the changes on a 29-5-2 vote, with Republicans Greg Elkins of Winchester, Jimmy Higdon of Lebanon, Chris McDaniel of Ryland Heights, Robby Mills of Henderson and Stephen West of Paris voting no and Republicans Donald Douglas of Nicholasville and Adrienne Southworth of Lawrenceburg passing. Republican John Schickel was absent.

Sen. Amanda Mays Bledsoe, R-Lexington, told the Senate, "I thought it was fantastic to have a Kentucky-crafted legislation that looked at solutions for us and not other states. . . . I just complement the bill sponsors and members of that working group for the good work."

Abortion did hit the Senate floor late in the day, as Sen. David Yates, D-Louisville, tried to bring up his SB 99, which would have added rape and incest exceptions to state abortion laws. Senate leaders ruled his action out of order, and when he appealed the ruling, senators upheld it largely along party lines.

The more health-related social needs factors a woman has, the less likely she is to get a mammogram; that matters in Kentucky

Centers for Disease Control and Prevention graphic

By Melissa Patrick
Kentucky Health News

A Centers for Disease Control and Prevention study says the more health-related social needs a woman has, the less likely she is to get a mammogram. 

The study defines health-related social needs, or HRSNs, as social conditions that adversely affect a person's health. Examples include feeling socially isolated, loss of work or reduced hours, dissatisfaction with life, the cost to access health care, a lack of transportation, and receiving food stamps. HRSNs are some of the social determinants of health. 

Using data from the CDC's 2022 Behavioral Risk Factor Surveillance System, a continuing national survey, the researchers found that mammogram use was almost 20% lower among women between the ages of 50 and 74 who had three or more HRSNs, compared to women who had no such needs.

The report did not provide state-level data, but health-related social needs are more prevalent in Kentucky than in most states.

In Kentucky, 59% of women aged 40-49 and and 72% of women aged 50-74 reported having had a mammogram within the previous two years, according to the 2022 BRFSS data. The rate for younger women 40-49 was the same as the national average, but the rate for those 50-74 was 4.6 percentage points less.

Among U.S. women aged 50 to 74 with no adverse HRSNs, 83 percent had a mammogram in the last two years, while that was true for only 66 percent of those with three or more adverse HRSNs.

“We have to address these health-related social needs to help women get the mammograms they need,” Dr. Debra Houry, chief medical officer at the CDC, said in a news release. “Identifying these challenges and coordinating efforts between health care, social services, community organizations, and public health to help address these needs could improve efforts to increase breast cancer screening and ultimately save these tragic losses to families.”

Breast cancer causes more than 40,000 deaths in U.S. women each year, according to the news release. 

Between 2016 and 2020, Kentucky's breast-cancer rate was 126.7 per 100,000 people and its breast cancer death rate was 21.6 per 100,000, according to the National Cancer Institute State Cancer Profiles. The national rate was 19.6.

The report adds that Black women and women of lower socioeconomic status are more likely to die from breast cancer. 

The U.S. Preventive Services Task Force currently recommends that women aged 50 to 74 get a screening mammogram every two years and that women ages 40 to 49 talk to their health-care providers about when to start and how often to get a mammogram.

Most health-insurance plans cover the full cost of screening mammograms, but follow-up diagnostic imaging is not always covered.

To address this, Kentucky lawmakers recently passed House Bill 115, which eliminates co-payments and cost-sharing requirements for high-risk individuals who need follow-up diagnostic imaging to rule out breast cancer. Gov. Andy Beshear signed HB 115 into law on April 5. It takes effect Jan. 1, 2025. 

“Thousands of Kentuckians require diagnostic and supplemental breast imaging every year, yet many forgo them due to out-of-pocket costs. Not anymore," Molly Guthrie, vice president of policy and advocacy at the breast-cancer foundation Susan G. Komen, said in a news release. "This life-saving legislation means they will now receive the breast imaging they require, leading to an earlier breast cancer diagnosis and often better health outcomes."

Bill would make diagnostic breast examinations more affordable

Reps. Lisa Willner, left, and Kim Moser present HB 115 to the
House Health Services Committee. (Photo by Melissa Patrick)

By Melissa Patrick

Kentucky Health News

The General Assembly is advancing a bill to remove out-of-pocket charges for follow-up diagnostic breast examinations and supplemental breast examinations when they're medically necessary.

A scientific study has found that one in five women don't get recommended follow-up breast exams  because of cost.

The House Health Services Committee approved House Bill 115 Feb. 1, and the measure was posted for passage in the full House on Monday, Feb. 5. 

"This bill really is about early detection of breast cancer," said Rep. Kim Moser of Taylor Mill, the bill's primary sponsor and the committee chair. "It'll ensure that individuals at high risk for breast cancer have access to diagnostic mammograms or follow up imaging. This is obviously needed to rule out breast cancer or the need for further testing."

Rep. Lisa Willner, a Democrat from Louisville, presented the bill with Moser.  Willner filed a similar bill last year that did not get any traction.
 

"The good news is that overall, our overall cancer numbers are declining," Willner said. "But breast cancer is one of the areas that's actually on the rise in Kentucky, really emphasizing the importance of this bill." 

Indeed, Kentucky's breast-cancer rate showed a steady rise between 2005 and 2019, when it reached a high of 132 women with breast cancer per 100,000, according to the National Cancer Institute.

In 2020, the rate declined to 127 cases per 100,000 women, but that was a "temporary, anomalous year" because of the pandemic, according to NIC. The pandemic caused reduced cancer screenings and diagnosis, which resulted in a decline in the 2020 incidence rates for most cancer sites, the agency said.  

The American Cancer Society estimates that one in every eight women will be diagnosed with breast cancer in her lifetime.

In 2023, more than 4,030 Kentuckians will be diagnosed with breast cancer and more than 790 will die of the disease, according to a letter from philanthropist Susan G. Komen supporting Willner's 2023 bill. 

Dana Carter, regional manager for state policy and advocacy for Komen's breast-cancer foundation, explained to the committee members why the follow-up testing is needed and how it would remove financial barriers to medically necessary diagnostic and supplemental breast examinations. 

"Mammography is only the initial step in the early detection process and it is not able to diagnose cancer alone," she said. "Early detection of breast cancer is not possible without medically necessary follow up imaging or additional supplemental imaging which is required to rule out breast cancer or confirm the need for a biopsy." 

She said an estimated 12% of women screened with "modern digital mammography" will require follow-up diagnostic imaging.

Further, she noted that a Komen-commissioned study recently found that out-of-pocket costs for patients varied widely and are often high, adding to the stress and confusion for patients who need such tests.  

"For example, the average patient cost for a mammogram is around $250, and for a breast MRI over $1000," she said. 

Carter also pointed to a study published in the scientific journal Radiology that found "one in five patients would not go in for the recommended follow up because they had to pay a deductible." 

"Unfortunately, we received many calls and emails from individuals who are unable to pay the out-of-pocket costs for the recommended follow up breast imaging," she said.

"Without assistance, many simply will delay or forego these medically necessary tests. This can mean that patients will not seek care until the cancer is potentially spread, making it much more costly or in deadlier to treat." 

Carter added, "Breast cancer can be up to five times more expensive when it is spread beyond the breast to other parts of the body."

The state Department of Insurance estimates that the bill would increase the cost of health insurance a as much as 57 cents per member per month, or not at all. "This represents an increase of approximately 0.0% to 0.1% or approximately $0 to $2.5 million for all fully insured policies in Kentucky, excluding Medicaid and state employees, due to the increased costs for health plans," the department says. 

The agency "acknowledges that there is a potential for long-term savings due to increased affordability and accessibility to cancer diagnostic testing which could lead to earlier detection of cancer."

As Kentucky's near-total abortion ban largely eliminates the procedure in the state, Kentuckians go to other states for it

From January to July of this year, the Kentucky Cabinet for Health and Family Services received reports of 13 abortions in the state, compared to 2,591 in the same time frame in 2021, showing the impact of state laws that were invoked when the U.S. Supreme Court nullified the right to abortion in late June 2022, Alex Acquisto reports in an in-depth article for the Lexington Herald-Leader. 

Acquisto writes, "The marked cliff is a direct result of Kentucky’s trigger law and six-week ban," which legislators passed in hope of such a ruling. "The trigger law bans all abortions except when a pregnant person’s life is immediately threatened, and the six-week ban, or fetal-heartbeat law, outlaws abortions after fetal cardiac activity develops ... usually around six weeks gestation."

The trend is mirrored in more than a dozen states that have enacted similar policies since the decision in Dobbs v. Jackson Women's Health Organization, according to estimates from the Guttmacher Institute, a policy research center that supports abortion rights. However, "In states that have preserved access, like Illinois, demand for the medical procedure has ballooned," Acquisto writes. 

"From January to June of this year, the number of abortions provided in Illinois grew by an estimated 69% (from 26,000 to roughly 45,000) compared with 2020, according to Guttmacher’s report. Across the board, states without abortion bans saw similar increases. Abortions in Virginia increased by 60%."

Southern Illinois has the closest abortion access to Western Kentucky; the closest to Eastern Kentucky is in Bristol, Virginia.

Acquisto notes that these estimates are  based on abortions reported by providers working in brick-and-mortar clinics and doctor’s offices, so "The true figures are likely even higher, since an estimated increase in abortion medication received by mail is not factored" into the estimates. 

The Guttmacher Institute report did not include numbers from Kentucky. Acquisto got them through an open records request. She writes that the health cabinet is expected to publish its annual abortion report for 2022 this month; state law requires it to be published by Sept. 30 of each year.

Acquisto writes that before the state's near-total abortion ban, "in a given month in Kentucky, between 300 and 400 abortions were provided, state data from recent years shows. . . . Most of the 13 were medication abortions, and most occurred in the second trimester, the latest being 21 weeks."

She adds that the cabinet did not release the ages of the individuals who received abortions in Kentucky so far this year, stating that doing so could create an "unwarranted invasion of personal privacy" because so few abortions were reported. Historically, this information has been public. 

Acquisto reports that piecemeal data provides some insight into how many Kentuckians are traveling out of state for this type of medical care. 

"Before Indiana’s near-total abortion became law in August, state data showed 340 Kentuckians had traveled to the Hoosier state for abortions between January and March, representing roughly 90% of all abortions provided to non-residents," she writes. " In 2022, a total of 950 Kentuckians got abortions in Indiana, WFPL reported in June." 

That shows many people will continue to seek such care despite state bans, Tamarra Wieder, Kentucky state director of Planned Parenthood Alliance Advocates, told Acquisto.

“Kentuckians didn’t stop needing abortions, they’ve just been forced to go elsewhere,” Wieder said. “Those who had the means and the ability to leave the state are leaving the state for that type of care.”

Organizations that help women travel across state lines for reproductive health care say the demand for their help is not letting up, Acquisto reports: "Kentucky Health Justice Network, which offers assistance to people who need help paying for their abortion, fielded more than 500 calls from January to July of this year (421 received donations from KHJN to pay for their abortions)." 

Savannah Trebuna, co-director of KHJN’s abortion support fund, told Acquisto that before August, when Indiana banned abortion, 44% of people who the network's hotline traveled to Indiana for abortions, and since then, KHJN has sent nearly 30 callers to Illinois.

Acquisto also notes the challenges Kentucky women face when they need a medically necessary abortion but their life is not immediately threatened, a situation that current law doesn't allow a doctor to address. 

Trebuna told Acquisto, “There have been cases where we’ve had callers who would have died had they continued their pregnancy, but because they weren’t actively dying in front of a doctor, they were still referred out of state.”

Cameron, other GOP AGs challenge Biden rule that would block access to medical records of women leaving state for abortions

Attorney General Daniel Cameron

By Melissa Patrick
Kentucky Health News

Attorney General Daniel Cameron joined fellow Republican attorneys general in opposing a proposed federal privacy rule to shield the medical records of patients who get reproductive health care services, such as abortions, in other states.

The June 16 letter that Cameron co-signed with 18 other attorneys general to the U.S. Department of Health and Human Services argues that the agency's proposed rule would upset the framework that safeguards the privacy of individual health information while permitting disclosure of information to state authorities to protect public health, safety and welfare. 

Under the proposed rule states that have banned abortions would not be able to collect personal health information about these services from other states for investigations, lawsuits or criminal charges. This would “unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need," says the letter.

Kentucky has no law forbidding women from going to other states to get abortions.

The proposed privacy rule would prevent states from obtaining private medical information “for a criminal, civil, or administrative investigation into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care … outside of the state where the investigation or proceeding is authorized” and “is lawful in the state where it is provided.”

HHS defines "reproductive health care" broadly in the proposed rule and says it is inclusive of all types of health care related to an individual's reproductive system. These would include, but not be limited to, pregnancy, contraception, fertility, prenatal care, miscarriage management and abortion.  

The AGs' letter says that while the broad definition of reproductive heath care includes “health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age.” 

This, they argue, may allow the Biden administration "to advance radical transgender-policy goals" and "obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapy, and surgical interventions).”

Cameron said in a news release that the federal health-privacy law, the Health Insurance Portability and Accountability Act, or HIPAA, balances privacy and public-interest concerns by allowing disclosure of certain information to law enforcement. Cameron says the proposed rule would interfere with this.

Cameron writes, "HHS’s proposed rule exceeds the department’s legal authority. HIPAA authorizes HHS to set standards for protecting privacy in 'health information.' But HIPAA does not empower HHS to shield from authorities evidence of legal wrongdoing based on a claimed connection to 'reproductive health care.' The administration’s claims to the contrary could incentivize health-care providers to break state laws on everything from protecting unborn life to gender-altering surgeries."

The AGs' letter says the proposed rule would "curtail the ability of state officials to obtain evidence of potential violations of state laws." 

Kentucky has two laws that largely ban abortion in the state. One bans abortion except to save the mother's life and another bans abortions after six weeks of pregnancy, when many women are still not aware that they are pregnant. These laws have forced women who want or need an abortion to do so in states where it is still legal. 

This year, the General Assembly passed a law to ban gender-affirming medical care for transgender youth, which took effect last week when an injunction to block it was stayed, pending a future court ruling. This also creates a situation where families will likely seek care out of state.  

The same day Cameron and other Republican AGs sent their letter, all 23 Democratic state attorneys general submitted a letter supporting the rule, with suggestions for how to make it stronger. "Given this rapidly changing backdrop of extreme legal risks and increasing uncertainty, it is critical that additional guardrails be added to the privacy rule to protect against the disclosure of reproductive health information,” they wrote.

In a pepared statement, Angela Cooper of the American Civil Liberties Union of Kentucky called the attorney general's opposition to the proposed rule “another in a long line of actions indicating Daniel Cameron's unwillingness to stay out of Kentuckians’ private medical decisions. . . . The government has no place inserting themselves between families and their doctors, whether the issue is reproductive care or medically necessary care for transgender youth."

The letter in opposition of the proposed rule was led by Mississippi Attorney General Lynn Fitch and includes attorneys general from Mississippi, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Utah.

Abortion providers drop, at least for now, challenge to state's anti-abortion laws after failing to find a patient to be the plaintiff

Planned Parenthood's Louisville health clinic
Photo by Deborah Yetter, Kentucky Lantern

Kentucky’s two abortion clinics are dropping a legal challenge to the state’s near-total abortion ban, citing the state Supreme Court’s decision this year that they lacked standing to sue on behalf of potential patients. 

Planned Parenthood and EMW Women’s Surgical Center “said they have not given up and will continue seeking such a patient willing to come forward, allowing them to file a new challenge,” Deborah Yetter reports for Kentucky Lantern.

Attorney General Daniel Cameron, an anti-abortion Republican who has been defending the two state laws under challenge, called the voluntary dismissal of the court challenge a "legal victory for unborn life" and announced that "the elective abortion industry is out of business in Kentucky." 

Cameron said in a news release, “A society is judged by how it treats its most vulnerable—especially the unborn.”

One of the laws at issue bans abortion after about six weeks, before some women realize they are pregnant; another bans almost all abortions. Both were invoked by a "trigger law" that took effect in late June 2022 after the U.S. Supreme Court ended federal abortion protections and subsequently almost all abortion services in Kentucky. 

EMW and Planned Parenthood filed a lawsuit last June in state court arguing that the state constitution creates a right to abortion. Early this year a divided Kentucky Supreme Court ruled earlier this year that abortion providers lacked legal standing to challange the anti-abortion laws on behalf of patients, which "meant they had to find a patient affected by the law and willing to sue," Yetter notes. 

The providers' decision to drop the legal challenge was prompted by a deadline of Tuesday, June 20, to produce a plaintiff who is pregnant and wants a pregnancy termination but can't get it as a result of one or both laws, Alex Acquisto reports for the Lexington Herald Leader.

The providers said in a statement, "If you are in Kentucky, seeking an abortion, and want to know more about possibly being a plaintiff in a lawsuit like this, our phone lines are open for them to give us a call or text us at 617-297-7012."

Another case challenging the state's abortion laws remains pending. It involves three Jewish women from Louisville who "argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth. They also argue it limits their right to other care, such as in-vitro fertilization," Yetter reports.

Acquisto reports that Planned Parenthood continues to provide reproductive health-care services, but EMW was forced to close its doors after the high court's decision in February. In late May, EMW listed its building for sale. 

Bill to address postpartum depression and other maternal mental-health problems has passed and awaits the governor's action

By Melissa Patrick

Kentucky Health News

A bill to ensure greater access to information and resources for mental-health care before and after the birth of a child passed without dissent in both houses of the General Assembly and has gone to Gov. Andy Beshear.

Sen. Shelley Funke Frommeyer

"Kentucky, sadly, has one of the worst maternal mortality rates in the country," the bill's sponsor, Sen. Shelley Funke Frommeyer, R-Alexandria, told the Senate Families & Children Committee in February.  "And we're looking to get upstream of that. We really want to work towards a solution." 

Senate Bill 135 calls on the state Cabinet for Health and Family Services to create written information on perinatal mental-health disorders, including postpartum depression, and make it available on its website. It also requires the cabinet to provide access to online clinical assessment tools to help providers detect the symptoms of perinatal mental-health disorders. 

The cabinet is also charged with creating a panel of maternal- and infant-health experts to explore the issue of perinatal mental-health disorders, including prevention, treatment and gaps in service.  The panel is required to report its findings to the Interim Joint Committee on Health, Welfare and Family Services and the Advisory Council for Medicaid Services on or before Nov. 1 of each year. 

"This bill is simple, but the impact will be wide reaching and could mean the difference between life and death for some Kentucky mothers," said Rep. Stephanie Dietz, R-Edgewood, who carried the bill in the House.

Amendment for pediatric recovery centers

A House floor amendment that included language from House Bill 436 was added to the bill and agreed to in the Senate. It directs the cabinet to submit a state plan amendment application by Nov. 1, 2023 to the federal Centers for Medicare and Medicaid Services to provide medical assistance "to the fullest extent permitted under federal law" for inpatient and outpatient services provided by a residential pediatric recovery center. 

Rep. Matt Lockett, R-Nicholasville, sponsor of HB 436 and the amendment, told the House that there is a great need for these centers because they care for babies with neonatal abstinence syndrome, noting that Kentucky has 15 babies born with NAS per 1,000 births. 

"These centers provide a unique non-hospital holistic approach that saves taxpayer dollars by avoiding expensive hospital stays and unnecessary foster care placements," said "They provide high quality inpatient medical care in a home like setting for babies born exposed to addictive substances."

Freestanding birth center bill hits roadblock: Senate floor leader

3/10/23: This story has been updated. 

By Melissa Patrick

Kentucky Health News

Even though a Senate bill to remove the state's certificate of need requirements from freestanding birthing centers has passed out of the same committee twice, most recently in weaker form, and the House version of the bill has cleared a committee, the prospects of it becoming law have dimmed. 

Sen. Damon Thayer

Senate Majority Floor Leader Damon Thayer, R-Georgetown, said at the March 3 Licensing and Occupations Committee meeting that while he appreciated the sponsor's efforts to improve the bill, made at his request, bills regarding certificates of need for health-care facilities "are not moving forward this session." 

Thayer, who calls bills up for a vote on the Senate floor, said "It’s very likely that we’re going to have a task force or a working group or one or two committee meetings dedicated to the certificate of need issue this summer."

Senate Bill 67, sponsored by Sen. Shelley Funke Frommeyer, R-Alexandria, cleared the Licensing and Occupations Committee on Feb. 21 on a 9-2 vote. On March 3, it was recommitted to the same committee, and on March 7 the panel approved an amended version of the bill by a vote of 7-3. 

The "no" votes came from Republican Sens. Amanda Mays Bledsoe of Lexington, Chris McDaniel of Ryland Heights, and Thayer. Sen. Donald Douglas, R-Nicholasville, a physician, passed.

"The committee sub is good and it moves it in the right direction," Thayer said in explaining his vote. "But I think I would be disingenuous knowing that we're probably going to take a deep dive into this issue during the interim. . . . I'm going to vote no because I just don't think it's ready for prime time yet." 

The new version of the bill would only allow freestanding birthing centers that have four or fewer beds to be exempt from having a certificate of need.

"This truly is a concession to the Kentucky Hospital Association," Funke Frommeyer said.

Funke Frommeyer told Kentucky Health News that the changes to the bill that were suggested after it passed the first committee "came straight from the KHA," even though "not once did they reach out to me to talk through their concerns before I brought the bill to committee." 

Freestanding birthing centers only provide vaginal deliveries for women with low-risk pregnancies.  Funke Frommeyer told the committee that Kentucky is one of only eight states that do not offer freestanding birthing centers. 

When asked, Funke Frommeyer wouldn't say the bill was dead. However, she suggested an immediate way forward for freestanding birthing centers in Kentucky is for hospitals to open and run them, like the Vanderbilt model the KHA described in the committee. 

Thayer was not so optimistic when asked if there was any hope for the bill this session.

"It doesn't look good for this session," he said. "It just doesn't have the votes to pass the Senate and it's probably going to go into this entire certificate of need conversation we're going to have during the interim."

Senate Concurrent Resolution 165 to establish the CON Task Force was introduced in the Senate March 10, with 27 sponsors. The resolution calls for all findings and recommendations to be submitted to the Legislative Research Commission by Dec. 1, 2023. 

Kentucky hasn't had a freestanding birthing center since the 1980s, although it has administrative regulations for licensing them and qualifying them for Medicaid reimbursement.

The revisions also added that the Cabinet for Health and Family Services would delineate requirements for medical malpractice insurance for the freestanding birthing centers, refers to the centers as health facilities instead of institutions and adds some screening and reporting requirements. 

Proponents of the birthing centers say the greatest roadblock to these centers is the certificate-of-need law, which require a center to prove that there is an unmet need for services before it can open, which allows providers and hospitals to challenge the would-be competitor's application.   

Several hospital officials spoke against removing the requirement. KHA President Nancy Galvagni argued that the certificate-of-need process is necessary for the health and safety of patients. 

"The proposed legislation and the committee sub to remove freestanding birthing centers from CON would require a change in regulation, removing the requirement for oversight of the facility by an obstetrician with admitting privileges at a local hospital," Galvagni said.

She also noted that the bill does not require a written transfer agreement with a Kentucky hospital. "If a complication during birth arises, a quick transfer from the birthing center to the hospital is going to be critical to the health and life of the mother and child. And without those written transfer agreements in place, a complicated birth could easily lead to the death of the mother, the baby or both," she said. 

Thayer and Committee Chair John Schickel, R-Union, scolded the KHA for not bringing its issues to the committee during the interim between legislative sessions, when the issue was discussed. Galvagni said they did not testify because they thought their position on this bill was "very well known." 

House Bill 129, sponsored by Rep. Jason Nemes, R-Louisville, passed out of the Feb. 22 House Licensing, Occupations & Administrative Regulations Committee without dissent and two pass votes. It has received two of its three required readings but still awaits a vote in the full House.

Nemes told Kentucky Health News that even though the Senate bill had stalled, he was heartened by its movement forward this session, largely because it revealed the opponents objections, which will now allow them to address those concerns.  

"I still feel good about it because we got really long into the process," he said. "If we don't get this resolved this session, we're going to have a strong, strong push over the interim and try to get it done next session."

State Supreme Court refuses to restore injunction blocking two laws, so in almost all cases abortion remains illegal in Kentucky

Justice Robert Conley joined Justice Debra Lambert's opinion; Justice Shea Nickell largely agreed.
Chief Justice Laurance Van Meter concurred only in the result of the decision, and wrote no opinion. 

By Melissa Patrick and Al Cross

Kentucky Health News

Abortion in Kentucky remains illegal in almost all cases while a lawsuit by the state's two abortion providers over the issue continues in the courts, the state Supreme Court ruled Thursday.   

In a much anticipated but highly fractured decision, the court refused to restore a Louisville judge's injunction that temporarily blocked two abortion bans last summer.

Justice Debra Lambert

“We hold that the abortion providers lack third-party standing to challenge the statutes on behalf of their patients,” Justice Debra Lambert of Somerset wrote in the Feb. 16 opinion. “Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf.”

Lambert also wrote, “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.”

The providers contend that the two bans violate a right to privacy that isn't specified in the state constitution but has been found in earlier decisions of the court. Jefferson Circuit Judge Mitch Perry provisionally agreed with them last July and issed an injunction blocking the bans. Now te case goes back to him for more proceedings, which will start the case's path back to the Supreme Court. 

The bans make abortions illegal in Kentucky except when the pregnancy poses a risk to the woman's life, or when fetal cardiac activity has begun, usually around six weeks into pregnancy and often before a woman knows she is pregnant. Both bans took effect last year after the U.S. Supreme Court overturned Roe v. Wade, the 1973 case that created a national right to abortion.

Perry's ruling was stayed by Court of Appeals Judge Larry Thompson of Pikeville, and a badly divided Supreme Court allowed it to stand while voters considered a constitutional amendment that would have made the case moot by saying the state's basic law creates no right to abortion. By 4.7 percentage points, voters rejected the amendment.

Justice Angela McCormick Bisig

A week later, the court heard oral arguments, but was unable to reach a decision before two seats changed hands. They were held by the two justices who clearly wanted to keep the injunction in place: then-Chief Justice John Minton of Bowling Green and then-Justice Lisabeth Hughes of Louisville. Neither sought re-election. They were replaced by Kelly Thompson of Bowling Green, who moved up from the appeals court, and Angela McCormick Bisig of Louisville, who rose from the Jefferson circuit.

The newly constituted court ruled without hearing additional arguments, and was even more fractured than the old court had been. Only Justice Robert Conley of Russell joined Lambert's controlling opinion. Justice Shea Nickell of Paducah agreed with them that Perry had abused his discretion, but said in a long dissent that the abortion providers had no right to challenge the laws until they were actually enforced, so the case should be dismissed.

Bisig, Thompson and Justice Michelle Keller of Fort Mitchell agreed only on a threshold procedural issue, whether the abortion providers had standing to sue, and disagreed with other parts. Bisig and Keller each wrote stronly worded dissents that the other joined. Thompson said Perry should move quickly but let "all interested parties" intervene in the case.

Chief Justice Laurance Van Meter

The justice that some observers have seen as the critical swing vote in the case, Chief Justice Laurance Van Meter of Lexington, concurred only in the result.

Bisig's dissent said that the court should have followed "decades of well-settled jurisprudence" and considered the constitutional issues. She said its decision “permits the criminal prosecution of persons who assist incest and rape victims in terminating a resulting unwanted pregnancy” and “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.'”

Attorney General Daniel Cameron,who is seeking the Republican nomination for governor, praised the controlling decision. "This is a significant victory, and we will continue to stand up for the unborn by defending these laws," he said in a news release.

The Planned Parenthood Federation of America, the American Civil Liberties Union, and the ACLU of Kentucky on behalf of the abortion providers, EMW Women’s Surgical Center and Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky issued a statement saying the court “failed to protect the health and safety of nearly a million people in the state . . . We will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky. This fight is not over.”

Cameron is among 20 Republican attorneys general warning CVS and Walgreens that mail-order abortion pills are unlawful

By Melissa Patrick

Kentucky Health News

Attorney General Daniel Cameron joined a coalition of 20 Republican attorneys general in sending a letter to Walgreens and CVS saying their plans to distribute abortion pills through the mail are unlawful. 

Daniel Cameron

“Having failed to halt the overturning of Roe v. Wade, the Biden Administration is now promoting its abortion priorities by misinterpreting federal laws that clearly prohibit distributing abortion drugs by mail,” Cameron said in a news release. 

The coalition says federal law prohibits anyone from using the mail to send or receive any drug that will "be used or applied for producing abortion," referring to the Comstock Act of 1873.

Last month, the U.S. Department of Justice issued a legal opinion finding that mailing abortion drugs does not violate the Comstock Act and said the Postal Service is legally allowed to deliver prescription abortion pills to people in states that have strict bans on abortions, like Kentucky currently does. 

The opinion said the Comstock Act “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” It added, “Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

After the legal opinion was issued, CVS and Walgreens announced plans to sell abortion pills through the mail.

In their letter, the attorneys general informed CVS and Walgreens that the Biden Administration has misinterpreted federal law. 

The coalition writes, “Although many people are unfamiliar with this statute because it has not been amended in a few decades, the text could not be clearer: “Every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.’”

Further, the attorneys general also warned that sending abortion pills through the mail may violate the laws of many states across the country.

"In Kentucky, the Human Life Protection Act prohibits “procur[ing] for” or “sell[ing] to any pregnant woman any medicine, drug, or other substance with the specific intent” of causing an abortion," says the release. 

The coalition also says “abortion pills are far riskier than surgical abortions,” and according to medical consensus are “5.96 times as likely to result in a complication as first-trimester aspiration abortions.” 

The Guttmacher Institute, a reproductive-health research and policy organization, disagrees, saying on its website: " A safe and effective option at early gestations, medication abortion accounted for more than one-third (39%) of all abortions in the United States in 2017. Medication abortion is as safe as surgical abortion, but is noninvasive and can be completed in a patient’s chosen setting, such as at home." 

The Kaiser Family Foundation says, "The FDA has found that medication abortion is a safe and highly effective method of pregnancy termination. When taken, medication abortion successfully terminates the pregnancy 99.6% of the time, with a 0.4% risk of major complications, and an associated mortality rate of less than 0.001 percent (0.00064%)."

Cameron, who is seeking the Republican nomination for governor, signed the letter with attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Louisiana, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia.

To read the letter to CVS, click here; to see the letter to Walgreens, click here.

Taxpayers pay malpractice awards involving federally qualified health centers; in Kentucky, $7.7 million was paid in 2018-2021

By Melissa Patrick and Al Cross

Kentucky Health News

Federally qualified health centers, or FQHCs, are very important parts of the health-care delivery system for the poor in Kentucky, largely because they can't turn anyone away and charge patients based on their income. In return, they get an annual grant and higher reimbursements from Medicaid and Medicare — and, for the vast majority of clinics, financial immunity from malpractice lawsuits.

The centers can still be sued for malpractice, but the federal government becomes the defendant and pays any settlements or judgments. That little-known aspect of FQHCs is examined in a story by Phil Galweitz and Bram Sable-Smith of Kaiser Health News, along with a list of the 485 payouts made on the centers' behalf from 2018 through 2021, totaling $410 million. 

Over that four years, Kentucky had nine payouts totaling $7,718,629, made on behalf of six health centers. Most of that, $5 million, was to settle a claim involving Sterling Health Solutions, based in Mount Sterling. The second largest, $2,082,337, was a judgment involving Big Sandy Health Care of Prestonsburg.

Both cases involved women's health care, which is often the object of high-dollar malpractice claims. Doctors say the cost and availability of malpractice insurance discourages opening such practices, especially in rural areas. 

Screenshot of Kaiser Health News' Kentucky list, adapted by Ky. Health News

"Malpractice lawsuits are a risk for all health-care providers and are just one barometer of quality of care," Kaiser Health News says. "The settlements and court judgments against the health centers don’t measure the clinics’ overall performance."

The clinics fill many needs. "Nearly half of the centers’ patients are covered by Medicaid, and 20 percent are uninsured," Kaiser reports. "Even lawyers who have sued on behalf of health center patients acknowledge the importance of the facilities. Rhode Island plaintiff attorney Amato DeLuca said that the health centers serve a vital role in the health industry and that he had found “a lot of really wonderful, extraordinarily capable people that do a really good job” at the centers. Yet everyone must be held accountable for mistakes, DeLuca said."

The biggest payments

Kentucky's biggest payment in 2018-21, $5 million, settled a $42 million claim by Rebecca Anderson and Randy Brooks of Montgomery County that their son, known in court documents as G.B., suffered severe and permanent injuries during and after his birth in 2015 because Dr. Byram Ratliff of Sterling Health Solutions failed to respond to fetal distress as evidenced on the fetal heart monitor strips prior to delivery. "Dr. Ratliff failed to institute prompt and proper medical care resulting in severe permanent injury," they alleged. "As a result, G.B. will require a lifetime of medical care and treatment."

A bench trial of the case was recessed for negotiations that resulted in a settlement, comprising $2.5 million of "upfront cash" to be held in escrow until all liens and claims in the case were resolved, and a $2.5 million trust fund for future medical care. The plaintiff's attorneys were awarded case expenses of $281,873 and fees of $1,250,000. Attorney fees in such cases are limited to 25% of the award. 

A document titled "Stipulation for compromise settlement and release" says the settlement is in no way an admission of "liability or fault."

Big Sandy Health Care was connected to the second largest amount paid in Kentucky during the four-year period, $2,082,337. This case was a medical negligence claim by Lisa Ann Crispen against Dr. Joanna Santiesteban, Dr. Enrico Ascani and Big Sandy Health Care for failure to diagnose uterine cancer. 

After a bench trial, Chief U.S. District Judge Karen Caldwell awarded the judgment, writing, "Chrispen proved by a preponderance of the evidence that Big Sandy's negligence in evaluating, diagnosing, and treating Chrispen's cancer caused her to suffer past and future lost wages, past and future medical expenses, past and future physical pain and suffering, and past and future emotional pain and suffering." 

The Kaiser list shows that another federal payment involving Big Sandy Health Care was made during the four-year period, in 2018 for $35,292.

Burkesville-based Cumberland Family Medical Centers was involved in the third largest payment, $225,000. This was in a case filed by Judy and John Courtier of Monroe County, alleging that the Tompkinsville center incorrectly transcribed a prescription from a rheumatologist, resulting in Judy Courtier taking a toxic amount of methotrexate (2.5 milligrams twice a day instead of two 2.5 milligrams tablets once a week), causing conditions that required hospitalization. The parties reached a settlement in October 2018.

The Kaiser list shows another federal payment involving Cumberland Family Medical Centers was made during the four-year period, in fiscal 2019 for $26,000.

The chain of clinics is Kentucky's largest federally qualified health center. It had gross revenues of $83 million in 2019, according to the Form 990 for tax-exempt nonprofits that it filed with the Internal Revenue Service. Kentucky nonprofits must also file the forms with the state attorney general's office.

Sterling reported 2019 revenues of $13.6 million. The latest filing at the attorney general's office from Big Sandy, for 2016, showed revenues of $19.5 million.

Family Health Centers of Louisville, which had 2019 revenues of $45 million, was involved in the fourth largest payment in 2018-21, $200,000. It settled a claim by Carolyn Boerste alleging failure to tell her that a radiology report noted she had a 12-inch-by-12-inch laparotomy sponge that snaked through her small intestine for 19 months before it was removed. 

Kentucky Health News offered the four health centers the opportunity to comment, but none did.

Other Kentucky payments in the four-year period involved Grace Community Health Center of Corbin, also called Grace Health; and Fairview Community Health Center of Bowling Green.

Why do taxpayers pay these settlements? 

To win congressional protection in the 1990s, federally qualified health centers "argued their revenues were limited and malpractice insurance would divert money that could better be used for patient care," Kaiser Health News reports. About 86% of the 1,375 clinics have this protection, which comes with a list of requirements. 

To get the protection, a clinic "must have quality- improvement and risk-management programs and must show regulators that they’ve reviewed the professional credentials, malpractice claims, and license status of their physicians and other clinicians," Kaiser reports. "Ben Money, a senior vice president for the National Association of Community Health Centers, said the process improves care and directs scarce operating dollars toward the needs of patients, versus costly malpractice coverage."

Patients who want to claim malpractice by a health center must file a claim with the U.S. Department of Health and Human Services, which can make a settlement offer or deny the claim. "If the claim is denied or not settled, or a six-month review period expires, the patient may sue in federal court under the Federal Tort Claims Act," Kaiser reports.

Here's a map showing the centers' locations in Kentucky (click on it to enlarge):

Map from the Kentucky Primary Care Association; to enlarge any image, click on it.

Ky. abortion ban makes more women seek sterilization; doctors try to clarify uncertainty about the limited exceptions to the ban

With Kentucky's near-total abortion ban in place at least until November, and state law unclear about the very limited exceptions, there has been a "swell of demand" for surgical sterilizations, doctors calling for clarity around when an abortion is allowed, and to top it off, uncertainty around who is going to provide that clarity, Alex Acquisto reports for the Lexington Herald-Leader.

Kentucky's abortion ban was triggered when the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that created a constitutional right to abortion. The law immediately banned abortion in the state, with exceptions to prevent the woman's death or serious impairment of a life-sustaining organ; another law bans abortion after six weeks of pregnancy.

A Louisville judge blocked the law pending resolution of a lawsuit against it, but a Pikeville judge on the Court of Appeals vacated that ruling, and the Supreme Court left it in place until it hears arguments in the case Nov. 15. The Nov. 8 ballot has a referendum that would make the case moot by making the state constitution say it guarantees no right to abortion or funding of it.

The sudden lack of access to abortion care has resulted in hundreds of Kentucky women seeking surgical sterilization, what is often called having your tubes tied or a tubal ligation, Acquisto reports. 

Ashley Watson (Herald-Leader photo)

Ashley Watson, a 36-year-old from Wilmore, told Acquisto that she decided to seek permanent sterilization because she had severe postpartum depression following each of her daughters' births. 

“My mental health wouldn’t survive another pregnancy,” Watson told Acquisto. 

She added, "We live in a very conservative state, and there’s this fear that birth control is going to be the next thing on [legislators’] agenda." To avoid remaining pregnant against her will, she told Acquisto that permanent sterilization “is the only thing I can do to guarantee that I’m never going to be put in that position.”

Destinee Ott, a 25-year-old Beattyville teacher, told Acquisto that she decided to have her tubes tied because she would be have no option to terminate a pregnancy if her birth control failed.

Acquisto reports that Ott has polycystic ovary syndrome and endometriosis, and that if she gets pregnant, the PCOS creates a high likelihood of an ectopic pregnancy, which is when a fertilized egg implants outside of the uterus, often in a fallopian tube.

"Though an ectopic fetus can have a heartbeat, none are viable," Acquisto notes. "If not treated early enough, an ectopic will rupture and cause serious medical complications for the pregnant person, even death." She reports that treatment for an ectopic pregnancy is either a surgical or medical abortion, which means it is regulated by Kentucky's trigger law. 

"An ectopic pregnancy will eventually become life-threatening. But it might not be life-threatening, initially, depending when it’s diagnosed in a pregnancy," Acquisto writes.

Herein lies the gray area and Otts knows this, she writes: "Under the law, if she were to have an ectopic pregnancy, she worries she wouldn’t reliably be able to get an abortion until it progressed to the point of endangering her life, which is partly what’s propelling her to get a tubal now," she writes.  

“I hadn’t really worried about it before now, just because there were other options if something did go wrong,” Otts told Acquisto, referring to in-state abortion access. “But now I’m wanting that security, just because, with my medical issues, I don’t want to risk it.” 

Both women quickly learned that they were just two of hundreds of Kentucky women seeking sterilization in a post-Roe state, Acquisto reports: "It’s a swell in demand that remains two months later, according to seven board-licensed obstetrician-gynecologists at Baptist Health, Lexington Women’s Health, Women’s Care of Lake Cumberland and University of Louisville Health."

Three of the OB-GYNs spoke with Acquisto on the condition of anonymity, fearing retaliation from their employer, which has demanded they not speak publicly about this topic, she reports.

Doctors are worried too

"The anxiety felt by Kentuckians around the future of abortion care extends to their doctors, too," Acquisto writes. "Some say legal gray areas are creating challenges in their practices and could have lasting impacts on health care." 

She adds, "Though clinics and hospitals did not have quantifiable data available, Baptist Health, Kentucky’s largest health-care system, said its patient demand within a week of Roe falling was 'significant' and 'notable'" for tubal ligations, vasectomies and other long-term birth-control measures.

The doctors Acquisto interviewed said there has been a shift in who is asking for tubal ligations; before, it was largely women with biological children, but now it is driven by women in their 20s with no children. Now the waiting list for the procedure, in some cases, is now months long. 

"Roe was tossed on Friday, June 24. The following Monday, an OB-GYN at Lexington Women’s Health told the Herald-Leader their front desk fielded a staggering 91 requests for tubals," Acquisto reports. "On July 12, Dr. Lynne Simms said her Baptist Health clinic provided 22 tubal consults,” and said at least five patients asked "what their options would be in the future regarding birth control."

"In short, women in Kentucky guarding their bodies against the possibility of pregnancy have descended in droves," Acquisto reports. 

A "vaguely worded law" 

Acquisto reports that doctors are trying to figure out "how to give medically necessary abortion care under a vaguely worded law, the violation of which could result in a felony charge or jail time."  

"No provider who spoke with the Herald-Leader had a clear understanding of the exact conditions and ailments that count as medical exemptions, but most agreed that an abortion is only legally allowed in the event of a medical emergency," she writes. 

The law says a licensed physician can perform an abortion without risking a Class D felony (punishable by one to five hears in prison) if it’s “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.” 

The law requires the physician 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.”

But Acquisto writes that obstetrician-gynecologists she interviewed "want to know: what about anomalies that are un-survivable to a fetus, but aren’t a health risk to the mother?" 

Such conditions include anencaphaly, in which a fetus never develops parts of its brain or skull, but does not pose a risk to the pregnant person to carry it to term. 

"Before Kentucky’s trigger law took effect, the typical treatment route was a palliative induction, or inducing labor early to abort the fetus, which won’t survive outside the womb," Acquisto reports." But since no medical risk is posed to the pregnant person, and since the fetus could still have a heartbeat, is abortion in this scenario illegal under the trigger law?" 

Or, she asks, "What if one’s water breaks early in a pregnancy — a pre-term pre-labor rupture of membranes — likely fatally limiting fetal development and increasing the risk of severe infection in the pregnant person. Is an abortion lawful only if a severe infection develops, even if the fetus isn’t viable?" 

The Kentucky Medical Association told Acquisto that Kentucky's abortion laws "raises a number of legal questions for Kentucky physicians" and that they are working with their legal experts to analyze them before issuing official guidance. 

Meanwhile, a Lexington obstetrician-gynecologist told Acquisto that there is a push to “document the crap out of these discussions,” and to get second and third opinions. She then went on to describe a miscarriage situation where she would have performed a surgical abortion prior to this law, but because of it ordered a second ultrasound to prove beyond a reasonable doubt that the patient needed it. 

“I know it’s a miscarriage, but I don’t want to risk anything,” she said. “It’s wasting health-care dollars, but I don’t want a felony charge.” 

Acquisto reports that care for a Kentucky woman with an ectopic pregnancy was delayed because a physician assistant in an emergency room refused to fill a called-in order from the patient's gynecologist for an injection of methotrexate because he didn't want his name on the order. Methotrexate is a drug used in medical abortions.

Acquisto reports in detail that some other states' abortion bans cite specific medical conditions that are exempt from them, including ectopic pregnancies and miscarriages; and notes differing interpretations between physicians in states where laws don't have them such specifics. 

In Kentucky, Acquisto reports, it is unclear which state agency is charged with translating or clarifying the trigger law, since the Department for Public Health told her it does not bear that responsibility. 

“Each provider should be exercising their clinical judgment and treating patients accordingly,” department spokeswoman Susan Dunlap said. “DPH does not have a role in this.”

State Supreme Court keeps abortion ban in place; oral arguments to be heard Nov. 15, a week after voters may decide the issue

By Melissa Patrick

Kentucky Health News

A divided Supreme Court of Kentucky upheld Thursday an appeals-court ruling that made nearly all abortions illegal in Kentucky while a lawsuit on the issue moves through the court. But the voters may have the final say, in a referendum a week before the court is set to hear oral arguments in the case.

The American Civil Liberties Union, ACLU of Kentucky and Planned Parenthood Federation of America had sought emergency relief for the state's two abortion providers, EMW Women's Surgical Center and a Planned Parenthood clinic, both in Louisville.

They wanted the court to restore a Louisville judge's injunction that blocked two abortion bans the state legislature passed in 2019: a "trigger law" that took effect when the U.S. Supreme Court overturned Roe v. Wade, making abortion illegal in Kentucky except when the woman's life is threatened; and a ban on abortions after six weeks of pregnancy, about the time that fetal heart activity can be detected. 

Jefferson Circuit Judge Mitch Perry's injunction was based on his finding that the laws violate the rights to privacy, self-determination and religious freedom established by the state constitution and court decisions based on it. But the injunction was vacated by Court of Appeals Judge Larry Thompson of Pikeville, who said abortions performed while the case is pending "cannot be undone."

The court was divided. Only three of the seven justices (Robert Conley of Russell, Debra Lambert of Somerset and Laurance VanMeter of Lexington) fully concurred; the majority was made by Justice Michelle Keller of Fort Mitchell, who concurred in the result only and wrote a separate opinion, and Justice Shea Nickell, who joined in that opinion.

Justice Michelle Keller

Keller wrote that Thompson "not only failed to give appropriate deference to the trial court but also failed to undertake a thorough analysis that is required in a case of this magnitude, failing to even set forth the appropriate standard of review. That being said, remanding this matter to the Court of Appeals to engage in a proper analysis would only further delay the final resolution of these compelling issues."

Keller and Nickell said they shared many of the concerns voiced in the dissent by Chief Justice John Minton of Bowling Green and Justice Lisabeth Hughes of Louisville, the two members of the court who are retiring at the end of the year.

In an opinion written by Minton, they disagreed with the majority's finding that the issue did not present the "extraordinary cause" required for intervention in a pending case; they noted the importance of the case and said Court of Appeals Judge Larry Thompson of Pikeville had abused his discretion by vacating Jefferson Circuit Judge Mitch Perry's injunction. It said Thompson "failed to engage in any analysis regarding whether the circuit court abused its discretion" and the injunction should remain in effect while the case is decided.

"Failure to find extraordinary cause justifying interlocutory review under the circumstances presented here would constitute this court dodging its responsibility to settle legal issues of great legal importance facing the commonwealth," Minton wrote. "It is difficult to comprehend a more important or serious legal issue than legal access to abortion in the commonwealth."

Justice John Minton

Minton also wrote, "This court cannot turn a blind eye to the fact that this case involves one of the most contentious policy and political issues of our time. This case raises serious and important issues involving access to abortion, and movants make a compelling argument that women may suffer irreparable and permanent harm absent emergency relief from this court. And the attorney general also advances serious allegations of irreparable harm, alleging that any abortions performed during the pendency of this litigation cannot be reversed." Read the three opinions here.

The Supreme Court took the case from the Court of Appeals, as that court and all sides had requested, and scheduled oral arguments for Nov. 15. That is one week after the Nov. 8 election, which includes a ballot question that would add to the state constitution a statement that would negate Perry's findings, by saying that the constitution does not grant a right to an abortion or funding of it.

"We look forward to that expression of the will of the commonwealth," Keller wrote in her opinion.

Also on the Nov. 8 ballot is a nonpartisan race between registered independent Keller and state Rep. Joseph Fischer, R-Fort Thomas, who sponsored the proposed amendment and the trigger law. Four of the Supreme Court's seven seats are on the ballot. There are contested races for the seats that Minton and Hughes are giving up; Nickell is unopposed. 

Asked about the ruling, Democratic Gov. Andy Beshear, who generally favors abortion rights and is seeking re-election, again noted that neither of the two abortion bans have exceptions for rape or incest. 

"The Kentucky Supreme Court has left in place one of the most extremist laws across the United States," Beshear said. "It bans options for everyone, meaning that victims of rape and incest have absolutely no options and have to potentially carry their rapists child. It means a victim of incest. and we've seen young girls 10, 11, 12 violated by a family member has no options. I think that's wrong. And I think the majority of Kentuckians agree with me." 

Attorney General Daniel Cameron, who is seeking the Republican nomination to oppose Beshear and got Thompson to negate Perry's injunction, said in a statement, saying that since the U.S. Supreme Court has given abortion decisions back to the states, we "must allow our policymakers in the General Assembly to speak for the people they represent."

The ACLU said, “The Supreme Court’s decision to allow Kentucky’s abortion bans to remain in effect puts nearly a million people’s health care in jeopardy. Abortion is not only health care but also a critical individual freedom. Make no mistake: abortion bans result in tragic health outcomes and are a form of control over our bodies. Despite this setback, the fight continues. We will proceed with our case to restore and protect reproductive freedom in Kentucky. Politicians and the government should never have the authority to force a person to remain pregnant against their will.”