Bevin asks Kentucky Court of Appeals to close Lexington abortion clinic

Gov. Matt Bevin is continuing his legal fight to close a Lexington abortion clinic.

The Bevin administration asked the Kentucky Court of Appeals on Monday to overturn a lower court’s denial of the state’s request to temporarily close EMW Women’s Clinic on Burt Road.

The state said the appellate court should reverse a ruling last month by Fayette Circuit Judge Ernesto Scorsone and order a temporary injunction prohibiting the clinic from operating an abortion clinic until it receives a license from the state Cabinet for Health and Family Services or until the lower court makes a final judgment in the case.

The state claims the lower court misinterpreted and misapplied relevant state laws and relied on unwarranted assumptions and facts that were not in the court record.

Scorsone said the state cabinet failed to present adequate evidence during a hearing last month that it eventually would prevail in the lawsuit or that allowing the clinic to remain open as the lawsuit proceeds would cause “irreparable injury.”

Scorsone also said closing the clinic would be against the public interest because it is the only physician’s office that routinely provides abortion services in the eastern half of Kentucky.

The state sued the clinic in early March, alleging that it lacked a required state license. The clinic stopped performing abortions March 9 pending a judge’s ruling, but said it would resume offering the procedure after Scorsone’s ruling.

“We’re confident that Judge Scorsone’s well-reasoned decision will hold up on appeal,” said Scott White, an attorney representing the clinic.

He added that the clinic “will continue to provide the important services to women in this part of the state.”

The state has said the clinic performed more than 400 abortions in 2015.

At issue is whether the clinic may operate as an unlicensed doctor’s office that performs abortions, as it has for many years, or whether it is a full abortion clinic that requires state licensing.

At last month’s circuit court hearing, clinic owner Ernest Marshall said the clinic used to do more regular gynecological health care, but its primary work has been providing abortions since his partner died a few years ago.

On Feb. 17, state inspectors with the Cabinet for Health and Family Services visited the clinic, where they reported that employees told them the clinic only performed abortions. Inspectors also found what they said were dirty conditions and expired medicine.

Marshall — a retired obstetrician-gynecologist in good standing with the Kentucky Board of Medical Licensure — also owns EMW Women’s Surgical Center in Louisville. It is the only fully licensed abortion provider in Kentucky.

The Lexington clinic does only first-term abortions using surgical procedures and medical inducement.

Under Kentucky law, physicians’ offices that perform a variety of services do not have to be licensed separately to perform abortions. Abortion clinics also are 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.

Steve Pitt, Bevin’s general counsel, told Scorsone it was clear the clinic performed only abortions and thus must be licensed by the state.

But Scorsone said evidence indicated the clinic operated as a private doctor’s office, despite the fact that abortions are done there.

In its appeal of Scorsone’s ruling, the state is asking the appellate court to hold oral arguments on its request for a temporary injunction.

This story was originally published April 4, 2016 at 5:55 PM with the headline "Bevin asks Kentucky Court of Appeals to close Lexington abortion clinic."