Kentucky abortion clinic appeals ruling that temporarily closed it

By Dave Andrusko

KYSupremeCourtjustices4reWhen last we reported on the EMW Women’s clinic, the abortion clinic’s lawyer, Scott White, was debating how best to challenge an appellate court ruling that agreed with the state of Kentucky that EMW should be temporarily closed until the Lexington clinic receives a license from the state.

We learned Tuesday that White chose an immediate appeal to the Kentucky Supreme Court over allowing the case to continue in Fayette Circuit Court. White’s 45-page appeal was anything but subtle, according to Jack Brammer of the Lexington Herald-Leader.

The Court of Appeals “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,” White wrote. “We call HOGWASH on that. That ignores the context of this suit.”

(The only licensed clinic in Kentucky is in Louisville.)

Responding for pro-life Gov. Matt Bevin, press secretary Amanda Stamper said the decision by the three members of the appellate court earlier this month was “well thought out and based upon clear Kentucky law.”

“We are confident that its injunction closing down an unsanitary and unlicensed abortion clinic will be affirmed,” Stamper said in an email to Brammer.

Fayette Circuit Judge Ernesto Scorsone

Fayette Circuit Judge Ernesto Scorsone

As NRL News Today reported, the three judge panel unanimously overturned the decision of Fayette Circuit Judge Ernesto Scorsone. The panel wrote

“As the cabinet points out, this case is not about a woman’s right to an abortion. 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.”

In response, Gov. Bevin characterized the decision as an “important victory for the rule of law in Kentucky.”

“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.”

Background:

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.

At trial, 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.