Kentucky’s only abortion clinic sues to block shutdown order from state

Attorneys for Kentucky’s only abortion clinic filed a lawsuit in federal court Wednesday seeking to block an order by Gov. Matt Bevin’s administration that will require it to shut down Monday.

The Cabinet for Health and Family Services on March 13 threatened to revoke the state license of EMW Women’s Surgical Center in Louisville over alleged “technical” deficiencies in the clinic’s required transfer agreements with a hospital and ambulance service.

Although the abortion clinic contends such transfer agreements are medically unnecessary, its agreements with the University of Louisville Hospital and Mercy Ambulance have been on file with the state for several years.

The ACLU of Kentucky and attorneys for EMW said the state’s requirements for transfer agreements are similar to those struck down by the U.S. Supreme Court last June in Texas. In that case, the court said requiring business arrangements with hospitals serves no medical purpose and instead impeded a woman’s right to an abortion.

“With just one clinic to care for the women in need of abortion services, the forced closure of EMW will have devastating consequences for women in Kentucky,” said attorney Don Cox. “The state is hiding behind sham justifications when its true intent is to shut down this clinic and prevent a woman from making a real decision about her pregnancy.”

The lawsuit, filed in Louisville, notes that complications from abortions are extremely rare, and the three doctors who practice at EMW have admitting privileges at one or more acute care hospitals within one mile of the clinic, including Norton Hospital and University of Louisville Hospital. Approximately 80 percent of the abortions performed at the clinic are done in the first trimester.

In an interview, Cox said an average of one patient per year is taken from the clinic and admitted to a hospital.

“We’re in federal court because we don’t believe any of these requirements are lawful, and they infringe on a woman’s right to health care,” Cox said. “Make no mistake about it, we are going into the very teeth of these requirements.”

Cabinet for Health and Family Services spokesman Doug Hogan said cabinet officials had received the lawsuit and were reviewing it.

In response to the cabinet’s March 13 letter, EMW’s lawsuit said the clinic negotiated a new agreement with Mercy Ambulance that “cures the alleged deficiencies.”

It also attempted to resolve the state’s concerns about its agreement with U of L Hospital. In its letter, the cabinet said the agreement was “not signed by an authorized representative” of the hospital.

The agreement is signed by the chair of the University of Louisville Department of Obstetrics, Gynecology and Women’s Health, who has “contractual authority for determining the manner in which OB-GYN services are provided at University of Louisville Hospital,” according to EMW’s lawsuit.

Instead, the state said in a follow-up letter that the agreement must be signed by the “owner of the acute care hospital, not a subordinate division ...”

EMW’s lawsuit said the clinic subsequently obtained the signature of Ken Marshall, the interim president and CEO of University Medical Center, “but shortly after he signed it, Mr. Marshall asked that the amended agreement not be sent to the cabinet.”

The state successfully shut down EMW’s clinic in Lexington last year, saying it was not properly licensed because it had stopped performing basic gynecological care in addition to abortions. A Fayette Circuit Court judge ruled the clinic could stay open while it applied for the proper license, but was overruled by the Kentucky Court of Appeals. The Kentucky Supreme Court declined to hear the case.

The ACLU also represents EMW in a challenge to a state law that requires doctors to display, and narrate in detail, an ultrasound to a woman prior to providing an abortion procedure, even if the woman objects and even if the doctor believes that it will harm the patient. A hearing in that case was held last week.

In its latest lawsuit, EMW claims the state’s action against the abortion clinic is retaliation for challenging the abortion ultrasound law.

“The timing of the cabinet’s March 13 letter is deeply suspicious,” the lawsuit alleges.

Linda Blackford: 859-231-1359, @lbblackford