Judge denies Bevin’s bid to close Lexington abortion provider, citing difficulty that would create for Eastern Ky. women

UPDATE, June 15: A three-judge panel of the state Court of Appeals reversed the ruling.

A Lexington judge has rejected Gov. Matt Bevin’s request to close the city’s only abortion facility, saying that it is operating legally and that closing it would restrict access to abortions by residents of Eastern Kentucky.

Circuit Judge Ernesto Scorsone said Friday that he wouldn’t issue an injunction to close EMW Women’s Clinic on
Burt Road because the state failed to
show that it is likely to win its lawsuit or that allowing it to stay open in the meantime would cause any irreparable injury.

“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,” Scorsone
wrote. “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.”

The clinic’s attorney, Scott White, said it only performs first-trimester abortions and would reopen next week. It had closed in response to the lawsuit because of potential fines. Bevin spokeswoman Jessica Ditto said the administration would take the case to the state Court of Appeals.

The state claims the clinic needs to be licensed as an abortion clinic because that is all it does.

At a hearing Wednesday, “Clinic owner Ernest Marshall said the clinic used to do more regular
gynecological health care, and is open to doing more, but he said that
since his partner died a few years ago, the clinic’s primary work is
abortions,” Linda Blackford reports for the Lexington Herald-Leader. “On Feb. 17, state inspectors with the Cabinet for Health and Family
Services visited the clinic, where they reported that employees told
them the clinic only performs abortions. Inspectors also found dirty
conditions and expired medicine.”

Scorsone wrote that he was sure the clinic would address those issues, which typically do not lead to efforts to shut down medical facilities. He wrote, “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. 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.”

“Scorsone said that the facility is already in compliance with the two
most important requirements of an abortion clinic – that it has in place
a transfer agreement with a hospital and a transportation agreement
with an ambulance service in case there are complications with
a procedure,” Joseph Gerth reports for The Courier-Journal.

The clinic performed 411 of the 3,187 abortions reported to state officials last year. Most (2,773) were done by the EMW Women’s Surgical Center in Louisville, which Marshall owns.

“The Bevin administration has targeted abortion clinics for regulatory action in the first months of his term,” Gerth notes. “In February, he sought to block Planned Parenthood from offering abortions at a new clinic it opened in Louisville.” That clinic has suspended abortions while the suit proceeds.

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