Kentucky Health News
Reversing a lower court’s ruling Wednesday, the Kentucky Court of Appeals said Lexington’s only location for legal abortions must stop performing them pending a lawsuit by the state that seeks to require it to be licensed as an abortion facility.
Fayette Circuit Judge Ernesto Scorsone declined in March to issue an injunction to close EMW Women’s Clinic on Burt Road, saying that the state failed to show that it was likely to win its lawsuit and that allowing it to stay open in the meantime would cause any irreparable injury. He found that the clinic was operating legally, and closing it would be “against the public interest” because it is the only clinic that routinely provides abortion services in the eastern half of the state and the right to an abortion is constitutionally protected.
But the facility is licensed as a physician’s office, not as an abortion clinic, and a three-judge panel of the Court of Appeals, all of them women, unanimously agreed with the administration of Gov. Matt Bevin that it needs the latter license to operate legally. The judges said Scorsone had misinterpreted the licensing requirements and didn’t give proper weight to the evidence, which was that all the clinic does is perform abortions and related procedures.
The clinic’s owner, Dr. Ernest Marshall of Louisville, testified that the Lexington business “originated as a doctor’s office” but has narrowed its line of work in recent years, especially after his partner died in December 2013. He said it was a simple facility compared to his EMW Women’s Surgical Center in Louisville, which is licensed as an abortion facility and performed 2,773 abortions last year compared to 411 at the Lexington facility, which does abortions only in the first 12 weeks of pregnancy.
Scorsone said Marshall “has a strong argument” that he didn’t need an abortion license because the Cabinet for Health and Family Services reached that conclusion after its last previous inspection in 2006 and the clinic doesn’t have $1.5 million worth of equipment, at which point an abortion-clinic license is required. But the appeals court pointed out that state law says an abortion facility is “any place in which an abortion is performed” and “We see no reason why an exemption determination should be determinative a decade later,” after the nature of the facility had changed.
The appeals court said Scorsone also erred in saying denial of an injunction wouldn’t cause irreparable injury, because the cabinet and the citizens would be harmed “if the cabinet is not allowed to correct the alleged violations of its licensing requirements.” It said that is a legal presumption that Marshall could have rebutted but did not. It also cited the cabinet’s latest inspection, which found “expired medications, defective equipment, [a] torn examination table and dust accumulation.”
In granting the injunction prohibiting abortions at the facility, the court said “There is a substantial legal issue as to whether EMW Lexington qualifies as a private physician’s office, where it performed only abortions in the last year.”
As for the availability of abortions in the eastern half of the state, the three judges said Marshall presented no evidence regarding “the location of the women EMW Lexington serves” and noted that it refers women past the 12th week of pregnancy to its Louisville facility. “As the cabinet points out, this case is not about a woman’s right to an abortion,” Judge Allison Jones wrote. “The cabinet is not seeking to prevent women from obtaining abortions [but] to enforce its right to regulate the manner in which abortions are performed in this commonwealth.” Judges Sara Combs and Debra Lambert joined in the opinion.