It’s disappointing that the state Supreme Court put the prerogatives of government above the rights of the governed by upholding the temporary closing of the EMW Women’s Clinic in Lexington, leaving Kentucky with just one provider of non-emergency abortions.
The Bevin administration is still blocking Planned Parenthood from providing abortions in Louisville even though a circuit judge found that the state’s action “defies reason.”
In Lexington, the state’s lawyers have offered no evidence that any patient has ever been harmed in the 27 years that EMW has been openly serving women making a choice protected by the Constitution.
More encouraging, the justices stressed that they were ruling only on the narrow question of whether a three-judge Court of Appeals panel had abused its discretion when it overruled Fayette Circuit Judge Ernesto Scorsone, who in March denied the state’s request for a temporary injunction closing EMW.
The Supreme Court also stressed that larger questions have yet to be considered in the case, which now returns to Scorsone for trial. Those larger questions include the constitutionality of Kentucky’s licensing requirements for abortion providers and the state’s targeting of EMW. Those questions and others are destined for the Supreme Court as Gov. Matt Bevin wages a legal assault on reproductive rights.
Kentucky’s licensing law took effect in 1999, the year before the Food and Drug Administration approved an abortion pill. The law fails to distinguish between medical and surgical abortions, or between simple first-trimester abortions performed with little to no anesthesia and more complex procedures performed later in pregnancy. EMW in Lexington provides only first-trimester abortions. EMW in Louisville, now the state’s only abortion provider, performs simple and more complex procedures.
In June, the U.S. Supreme Court ruled that state restrictions that limit access to abortion and serve no medical purpose are unconstitutional and increase risk by pressuring women to end pregnancies through unsafe means.
Scorsone, the Lexington judge, found that closing the “only physician’s office that routinely provides abortion services in the Eastern half of the state” would be against the public interest and that this “severe, adverse impact” on women outweighed the Bevin administration’s allegations that EMW lacked the proper license.
In 2015, EMW performed 411 or 13 percent of Kentucky’s 3,187 abortions. The Supreme Court acknowledged the burden the injunction places on women but said the record lacked specifics about that burden.
The justices cited unsanitary conditions discovered at EMW during a state inspection, but did not consider that, after remedying the conditions, EMW passed an inspection by the Board of Medical Licensure.
By taking EMW’s appeal, the Supreme Court did signal that it considers the case important.
It is important. Women and families know better than the governor what is best for them. The courts have a duty to safeguard Kentuckians’ constitutional rights, including the right to control their own bodies.