Physician's office asks Ky. Supreme Court to reverse decision ordering it to stop providing abortion care

June 23, 2016 — A Kentucky-based physician's office on Tuesday asked the state Supreme Court to reverse an appeals court ruling ordering it to stop providing abortion care pending the outcome of a lawsuit regarding the facility's licensure, the Lexington Herald-Leader reports (Brammer, Lexington Herald-Leader, 6/21).

Ky. brings lawsuit

In March, Gov. Matt Bevin's (R) administration filed a lawsuit against EMW Women's Clinic in Lexington. 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 physicians' offices. Kentucky law does not require a physician's office that provides 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.

Details on previous rulings

In March, Fayette Circuit Judge Ernesto Scorsone denied the state's request to close EMW while the lawsuit continues.

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. Scorsone also said the facility meets the primary requirements for operating as an abortion clinic and that closing the facility "is against the public interest," as the facility currently "is the only physician's office that routinely provides abortion services in the Eastern half of the state."

The state appealed Scorsone's ruling.

Last week, a three-judge panel of the Kentucky Court of Appeals reversed Scorsone's decision. The appeals court said while the lawsuit continues, EMW must halt abortion care services or obtain a license from the state to provide abortion care. The ruling pertains only to the state's request for a temporary injunction, and does not represent a final decision in the overall lawsuit.

According to Scott White, an attorney for EMW, the ruling means there is now only one facility in the state where women can access first trimester abortion care (Women's Health Policy Report, 6/16).

Clinic files appeal

In its appeal to the state Supreme Court, EMW said the facility is essentially "shut down."

White wrote that the appeals court "adopted verbatim the gauzy excuse of the commonwealth that it was not trying to shut down abortion clinics in Kentucky (there is now only one) but to insure the safety of women using those facilities." He wrote that the clinic disputed that claim, noting it "ignores the context of this suit" (Lexington Herald-Leader, 6/21).