Ky. Supreme Court denies appeal in clinic licensure dispute

August 26, 2016 — The Kentucky Supreme Court on Thursday denied an appeal that sought to reverse a lower court ruling that blocks a Lexington-based physician's office from providing abortion care pending the outcome of a lawsuit regarding the facility's licensure, the AP/Lexington Herald-Leader reports (Schreiner, AP/Lexington Herald-Leader, 8/25).

The ruling means a temporary injunction barring the facility from providing abortion care will remain in place until the lawsuit concludes or the facility meets the licensure demands at issue (Watkins, Louisville Courier-Journal, 8/25).

Ky. brings lawsuits

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.

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.

In June, a three-judge panel of the Kentucky Court of Appeals reversed Scorsone's ruling. 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.

EMW appealed the ruling (Women's Health Policy Report, 6/23).

Supreme Court opinion

On Thursday, the Kentucky Supreme Court denied EMW's appeal. The opinion stated that at this point in the case, "EMW has failed to demonstrate why it should be exempt from licensure as an abortion facility." In the opinion, the court emphasized that it "wish[es] to be doubly clear that [its] statements today are in no way to be taken as this Court's definitive position on whether or not EMW Lexington is legally considered an abortion clinic operating without proper licensure" (Blackford, Lexington Herald-Leader, 8/25).

The opinion acknowledged that with EMW closed, there is only one abortion care facility open in the state. That facility, also run by EMW, is in Louisville, which is about 80 miles west of Lexington (AP/Lexington Herald-Leader, 8/25). Planned Parenthood of Indiana and Kentucky runs a second facility in Louisville that offers a wide range of reproductive health care services, but does not currently provide abortion care (Louisville Courier-Journal, 8/25).

EMW's comments

Scott White, an attorney for EMW, said EMW is trying to fight "a direct assault by this administration on the settled constitutional right of a woman to a legal abortion" (AP/Lexington Herald-Leader, 8/25).

White also disputed the Supreme Court's claim that the ruling was not about abortion rights, noting that the decision will have "a serious, negative impact on [abortion access in] the eastern part of the state" (Louisville Courier-Journal, 8/25).

White continued, "At the end of the day, we are disappointed, but in no way disheartened. The fight for the EMW Clinic to be re-opened and the rights of Kentucky women will continue. We are optimistic that when we have the full trial later this year before Judge Scorsone that we will win" (Lexington Herald-Leader, 8/25).