A Lexington abortion clinic will remain closed through at least Thursday, awaiting a judge’s ruling about whether it must close until it obtains a state license.
At issue during a hearing Wednesday before Fayette Circuit Judge Ernesto Scorsone was whether EMW Women’s Clinic on Burt Road can 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.
Two weeks ago, the administration of Gov. Matt Bevin filed suit against the clinic, saying it does not have the required licensing. The clinic stopped performing abortions on March 9 pending a judge’s ruling.
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 performs abortions. Inspectors also found dirty conditions and expired medicine.
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Clinic owner Ernest Marshall — an obstetrician-gynecologist in good standing with the Kentucky Board of Medical Licensure who also owns the EMW Women’s Surgical Center in Louisville — said he received a legal opinion many years ago that he did not need a license.
His surgical center in Louisville is the only fully licensed abortion provider in Kentucky.
“We’ve always operated as a doctor’s office” in Lexington, Marshall explained on the stand. “The facility is only 2,500 square feet and we only do very small cases under local anesthesia, things that could be done in a doctor’s office.”
The Lexington clinic does only first-term abortions using surgical procedure and medical inducement.
Under Kentucky law, physicians’ offices that perform a variety of services do not have to be separately licensed to perform abortions. Abortion providers 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.
Marshall, who retired from private practice in 2011, said the Lexington clinic did more general ob-gyn care in past years, but now focuses mostly on abortions. He said the clinic in Louisville focuses on more complicated abortion cases than in Lexington.
Abortion is “one of the most minor and safe procedures there is,” Marshall said.
Steve Pitt, Gov. Matt Bevin’s general counsel, told Scorsone it was clear that the clinic performed only abortions and thus must be licensed by the state.
“It’s very clear that EMW of Lexington is an abortion facility,” he said. “If this is not the sort of abortion facility the General Assembly intended to be regulated and licensed, I can’t imagine what is.”
After the hearing, Pitt said he argued the case because of a shortage of lawyers at the moment in the Cabinet for Health and Family Services.
Anyone who performs abortions is required to report them to the state’s Office for Vital Statistics. According to that office, the EMW clinic in Lexington performed 411 abortions in 2015. In total, 3,187 abortions were done in Kentucky last year, said Paul Royce, Vital Statistics director, who testified on behalf of the cabinet. The EMW surgical center in Louisville did 2,773 abortions in 2015, he said.
Defense attorney Scott White said the Lexington clinic will continue to abide by its agreement not to perform any abortions until Scorsone rules in the case. The clinic could be liable for $10,000 in fines for each procedure it performs without a license.
“The consequences are just so severe,” White said after the hearing. “My belief is if we did the abortions, even in good faith ... I think we would be completely liable for those fines.”
Pitt suggested that patients scheduled for procedures on Thursday and Friday of this week could go to the EMW clinic in Louisville.
The nearly five-hour hearing featured testimony from Marshall and the two inspectors who visited the clinic. One of them, Elizabeth Richards, said that with most inspections, clinics are given a list of required corrective actions and given 10 days to make changes. White said the Lexington clinic had not received such a list.
Richards also said she received the initial complaint that the clinic was operating without a license from one of her bosses, Melanie Poynter, the assistant director in the cabinet’s Office of Inspector General. Later, Pitt said that Poynter merely relayed an anonymous complaint to Richards’ office.
However, observers in the courtroom understood her to say that Poynter had made the complaint. In his closing remarks, White accused the Bevin administration of producing “a manufactured lawsuit” and said the state “has been less than honest in coming to this court about how this whole thing started.”
White also alluded to Bevin’s well-publicized anti-abortion stance, pointing to the fact that EMW had operated without a license since 1989 without complaints or investigations.
“The commonwealth has a 26-year history of dealing with a Lexington abortion clinic, and now the only thing that has changed is what happened in November,” he said, referring to the election of Bevin. White also ridiculed Pitt’s suggestion that women scheduled for abortions this week should go to the Louisville clinic instead.
“The idea that a woman would have to pay for an ambulance or some transport from Eastern Kentucky to Louisville to get an abortion is just remarkable to me,” he said. “There are going to be women who will not be able to exercise their constitutional right to that particular medical procedure.”
Three weeks ago, the state filed a lawsuit against Planned Parenthood of Louisville, saying the organization performed abortions without a license at its new clinic. Planned Parenthood said it had complied with instructions it received from the administration of Gov. Steve Beshear, whom Bevin replaced in early December.
The state is seeking nearly $700,000 in fines from Planned Parenthood, which stopped performing abortions until the matter is resolved.