Court of Appeals unanimously upholds Kentucky’s injunction against abortion clinic

By Dave Andrusko

Pro-life Kentucky Gov. Matt Bevin

Pro-life Kentucky Gov. Matt Bevin

When last NRL News Today wrote about the EMW Women’s Clinic, Fayette Circuit Judge Ernesto Scorsone had just rejected pro-life Kentucky Gov. Matt Bevin’s request to temporarily close the Lexington women’s clinic until it receives a license from the state.

Yesterday, the Kentucky Court of Appeals, in a 3-0 vote, overturned Scorsone’s March decision and granted Bevin a temporary injunction against a clinic his administration said was not properly licensed. In the interim, EMW Women’s clinic has been performing abortions.

EMW is “temporarily enjoined from operating an abortion facility” until it receives a license from the Cabinet for Health and Family Services or until a final judgment is rendered in the case,” reported Jack Brammer for the Lexington Herald-Leader.

The appellate court in its unanimous decision said it agreed with Gov. Matt Bevin’s argument “that the circuit court’s findings and conclusions are clearly erroneous.”

“As the cabinet points out, this case is not about a woman’s right to an abortion,” the court said in its 24-page order. “The cabinet is not seeking to prevent women from obtaining abortions. It is seeking, however, to enforce its right to regulate the manner in which abortions are performed in this commonwealth.

Calling it an “important victory for the rule of law in Kentucky,” Bevin said, “We are pleased by the court’s recognition that an unlicensed abortion clinic is prohibited from performing abortions. This has been our administration’s stance from the beginning. This is the right and necessary ruling to ensure that the health and safety of women are protected.”

Representing EMW Women’s clinic, attorney Scott White said he would advise the clinic to stop offering abortions. He told Brammer that “the clinic is assessing whether to let the case continue in Fayette Circuit Court or to make an immediate appeal to the Kentucky Supreme Court.”

When Judge Scorsone ruled against Gov. Bevin, spokeswoman Jessica Ditto said, “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.” 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,” she added.

Steve Pitt, Gov. 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.”

The lawsuit said that the inspectors noted “several unsafe and unsanitary conditions” during their visit. According to 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.