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Judge denies Kentucky Governor’s request to temporarily close Lexington abortion clinic

by | Mar 21, 2016

By Dave Andrusko

Fayette Circuit Judge Ernesto Scorsone

Fayette Circuit Judge Ernesto Scorsone

On March 2, the administration of pro-life Kentucky Gov. Matt Bevin filed a lawsuit asserting that the EMW Women’s Clinic is operating an unlicensed abortion clinic and should be temporarily closed until it receives a license from the state. While the case was adjudicated, the clinic ceased performing abortions.

However, last Friday, Fayette Circuit Judge Ernesto Scorsone denied the request. He said “the Cabinet for Health and Family Services failed to present adequate evidence during a hearing Wednesday that it will eventually prevail in the lawsuit or that allowing the clinic to remain open as the lawsuit proceeds would cause ‘irreparable injury,’ ” according to Linda Blackford of the Lexington Herald-Leader.

The abortion clinic said it intended to resume performing abortions this week. Jessica Ditto, a spokeswoman for Gov. Bevin, said the administration would take the case to the Kentucky Court of Appeals as soon as possible.

“The evidence at the hearing overwhelmingly showed that EMW-Lexington, which performed over 400 abortions in 2015 alone, is an abortion facility that is required to be licensed under Kentucky law,” she said. “The defendant failed to meet its heavy burden of proving that it is entitled to an exemption from licensure as a ‘physician’s office.’ The proof was clear that EMW is not a physician’s office in that it admittedly does nothing but abortions.”

According to Blackford, “Under Kentucky law, physicians’ offices that perform a variety of services do not have to be separately licensed to perform abortions. Abortion clinics are also required to have agreements with a local hospital and an ambulance service. The EMW clinic now has both, though the state said the clinic did not have an agreement with an ambulance service at the time of its inspection.”

When it filed the lawsuit on March 2, Blackford reported, the administration argued that “A recent inspection of the clinic [February 17]— its first since 2006 — uncovered that it exists solely to perform abortions, disqualifying it for the licensure exemption provided to private physicians’ offices.”

Steve Pitt, Gov. Matt Bevin’s general counsel, told Judge Scorsone it was clear that EMW performed only abortions and therefore must be licensed by the state.

“It’s very clear that EMW of Lexington is an abortion facility.”

Steve Pitt, Gov. Matt Bevin’s general counsel, told Judge Scorsone. “If this is not the sort of abortion facility the General Assembly intended to be regulated and licensed, I can’t imagine what is.”

But Judge Scorsone disagreed. “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 lawsuit said that the inspectors noted “several unsafe and unsanitary conditions” during their visit. According to reporter Jack Brammer

Those included multiple cuts in the tape covering the bottom portion of a procedure table that could breed bacteria; multiple expired medicines, or medicines that had no labels or expiration dates; and dust, dirt and grime on numerous plastic bags and a portable oxygen tank.

“Observation of the area for cleaning instruments revealed similarly filthy conditions,” the lawsuit says.

Judge Scorsone was unimpressed. Blackford reported that at the end of his decision, Scorsone

noted that he was sure the EMW clinic would immediately address any cleanliness issues found by inspectors.

“Whether it is a doctor’s office, surgical center, or hospital, these are matters that any health care provider should seek to address right away,” he wrote.

Categories: Abortion Clinic