A Kentucky judge on Friday rejected a request from the state to order EMW Women's Clinic in Lexington to close pending the outcome of a lawsuit regarding the facility's licensure, the Lexington Herald-Leader reports (Blackford, Lexington Herald-Leader, 3/18).
Jessica Ditto, a spokesperson for Gov. Matt Bevin (R), said the state plans to appeal the ruling as soon as possible (AP/Raleigh News & Observer, 3/18).
Background
Earlier this month, Bevin's administration filed a lawsuit against EMW. The state requested that a judge impose a temporary injunction to force the clinic to halt abortion care while the state's lawsuit continues.
The suit states that the facility operates as an abortion clinic, which allegedly makes it ineligible under state law for a licensure exemption given to private physician offices. Kentucky law does not require physician offices that provide multiple health care services, including abortion care, to be licensed specifically as an abortion clinic. The lawsuit also claims that the clinic maintained expired medication and was unsanitary.
In addition, the lawsuit claims that the facility had not met all of the state's licensing requirements for abortion providers. Under state law, abortion clinics are required to have transfer agreements with an ambulance service and a hospital. The lawsuit claims that the facility had an agreement in place with a hospital but did not have one with an ambulance service. The facility now has both agreements.
The state requested an injunction to shut down the facility until it is fully licensed and that a judge impose the maximum fines allowed under the law. Scott White, EMW's attorney, said the state could impose a $10,000 fine for each abortion it performs. EMW has temporarily stopped offering abortion care, which it typically provides on Thursdays and Fridays.
Fayette Circuit Judge Ernesto Scorsone heard oral arguments on the state's motion for a temporary injunction on Wednesday. Steve Pitt, Bevin's general counsel, claimed that EMW provides only abortion care and should therefore have to meet the state's licensing requirements for abortion clinics.
Separately, Ernest Marshall, an ob-gyn and owner of both EMW facilities, testified that the Lexington facility should not have to be licensed as an abortion clinic. Noting that it has been licensed as a physician office since 1989, Marshall said the facility currently offers abortion care through the first 12 weeks of pregnancy, as well as other health care services. Further, White argued that the state lacks standing to bring the case because officials did not have proper authority to conduct the inspection that the state cites as grounds for the lawsuit (Women's Health Policy Report, 3/18).
Ruling details
On Friday, Scorsone denied the state's request to close EMW while the lawsuit continues (Lexington Herald-Leader, 3/18). He noted that EMW has "a strong argument that it is exempt from licensing," pointing to a 2006 state inspection that did not cite EMW for not obtaining an abortion clinic license. According to EMW, the facility in the 1990s started to operate as a physician office based on the advice of the state Cabinet for Health and Family Services. Moreover, Scorsone noted that since the facility has secured a transfer agreement with a hospital and with an ambulatory service, it has already met the primary requirements for operating as an abortion clinic.
Scorsone wrote, "The Commonwealth has not established a likelihood of prevailing on its claim that EMW is operating contrary to law" (Gerth, Louisville Courier-Journal, 3/18). He stated, "The uncontroverted testimony presented at the hearing is that it is within the standard of care to perform first trimester abortions in a doctor's office and that these procedures are less dangerous than others routinely performed in an office setting." He added, "The procedures used do not require sedation or the services of an anesthesiologist, factors that indicate EMW is a private physician's office exempt from the licensing requirements for ambulatory surgical centers" (Lexington Herald-Leader, 3/18).
Scorsone added that during testimony last week, state inspectors said that in examining other facilities, they would have notified the facility as to any potential issues and provided time to resolve the issues without trying to shut the facility down (Louisville Courier-Journal, 3/18). State officials did not give EMW an opportunity to resolve the issues raised during the inspection (Women's Health Policy Report, 3/18).
Moreover, Scorsone wrote, "In addition to the evidence indicating that EMW is operating legally and in conformity with the most important regulations of a licensed abortion facility, closing the clinic is against the public interest." He noted, "EMW is the only physician's office that routinely provides abortion services in the Eastern half of the state, and both parties agree that a right to an abortion during the first trimester of pregnancy is constitutionally protected. Closing EMW would have a severe, adverse impact on the women in the Eastern part of the state."
EMW responds
According to White, the clinic will resume providing abortion care services this week.
White said, "We are obviously very pleased with the court's decision." He added, "As we said from Day 1, this clinic has operated lawfully and appropriately in providing this service to women in this part of the state. The clinic looks forward to opening [this] week, and our hope is the cabinet will accept this decree and not waste any more effort and money on an argument that clearly has no weight" (Lexington Herald-Leader, 3/18).
