Supreme Court decision keeps Lexington abortion clinic closed

Sign across the street from the EMW Women’s Clinic on Burt Rd. in Lexington, Thursday, March 3.
Sign across the street from the EMW Women’s Clinic on Burt Rd. in Lexington, Thursday, March 3.

The Kentucky Supreme Court has denied an appeal that would reopen a Lexington abortion clinic.

EMW Women’s Clinic on Burt Road has been closed since June, when the Court of Appeals overturned a Fayette Circuit court ruling that allowed it to stay open after a legal challenge by Gov. Matt Bevin. The Court of Appeals’ ruling meant Bevin’s request to temporarily close the clinic until it received a license from the Cabinet for Health and Family Services was granted.

The debate centered on whether the EMW clinic required a license. State law requires that any full-time abortion clinic must be licensed. EMW was formed in 1989 by Ernest Marshall and Sam Eubanks, and performed early-stage abortions and women’s gynecological care. After Eubanks died in 2013, Marshall testified that most of the clinic’s work was abortions.

In February, shortly after Bevin took office, the Cabinet received an anonymous complaint about the clinic, saying it solely provided abortions. The Cabinet sent two inspectors who found the clinic was unlicensed and what they said were unsanitary conditions, including dust on the equipment. The Cabinet also filed suit for a temporary injunction to stop the clinic from performing abortions until it was licensed.

The clinic’s attorneys argued before Fayette County Circuit Court Judge Ernesto Scorsone that EMW was a women’s health clinic that also performed abortions and didn’t need a specific abortion license. Bevin’s attorneys argued that it was a full-time abortion clinic that needed a license.

Scorsone denied the injunction, saying that the Cabinet had not demonstrated a “likelihood of success on the merits,” and that closing it would infringe on the constitutional right to abortion for women in the eastern half of the state. The Cabinet appealed to the Court of Appeals, which overturned Scorsone’s ruling.

The Supreme Court’s lengthy decision said the court was not ruling on larger issues of abortion, merely the request for injunctive relief decided by the Court of Appeals.

“EMW has failed to demonstrate why it should be exempt from licensure as an abortion facility,” the opinion reads. “EMW exists solely to perform abortions and offers little to no proof it does anything else other than performing that service in potentially substandard conditions, proving precisely why the Commonwealth requires these facilities to be licensed in the first place. So we do not think the Court of Appeals abused its discretion in finding the Cabinet has established a substantial question.”

The decision also recognized the political passion stoked by abortion, but said the court focused only on state and federal law — the state laws that require special rules for abortion clinics and the federal laws that guarantee women the right to an abortion.

“Today’s case does not ask us to declare when life begins or to what extent the state may prevent a woman from terminating a pregnancy,” the opinion reads. “Our review necessarily requires us to preview the merits of the Cabinet’s claim, but we again wish to be doubly clear that our statements today are in no way to be taken as this Court’s definitive position on whether or not EMW Lexington is legally considered an abortion clinic operating without proper licensure.”

In a statement, Bevin praised the decision: “We are pleased that the Kentucky Supreme Court has upheld the Court of Appeals’ decision recognizing that an unlicensed abortion clinic is prohibited from performing abortions. The laws of Kentucky matter and must be followed, even when individuals, corporations or lower court judges think otherwise.”

EMW in Lexington is the only abortion provider east of Louisville, serving numerous women from Eastern Kentucky and beyond. EMW has a fully licensed facility in Louisville which performs abortions for women who are more than 12 weeks pregnant.

In a statement, EMW’s attorney, Scott White, said: “At the end of the day, we are disappointed, but in no way disheartened. The fight for the EMW Clinic to be re-opened and the rights of Kentucky women will continue. We are optimistic that when we have the full trial later this year before Judge Scorsone that we will win.”

Linda Blackford: 859-231-1359, @lbblackford

Related stories from Lexington Herald Leader