A Court of Appeals ruling allowing the Bevin administration to shut down one of only two abortion providers in Kentucky misses the constitutional forest for the regulatory trees.
Fayette Circuit Judge Ernesto Scorsone ruled in March that closing the EMW Women’s Clinic in Lexington even temporarily would “have a severe, adverse impact on the women in the Eastern part of the state.”
In overruling Scorsone, a three-judge panel discounted the impact on Kentucky women, then went on to conclude preposterously that “this is not about a woman’s right to an abortion” and “the Cabinet is not seeking to prevent women from obtaining abortions.”
The Bevin administration is clearly seeking to prevent women from obtaining abortions or it wouldn’t be trying to brand as an outlaw an abortion provider that has operated openly and without challenge in Lexington for years. Nor would it be threatening Planned Parenthood with $684,000 in fines for performing 23 abortions in Louisville, even while admitting that Planned Parenthood had received an official green light during the preceding administration.
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Wednesday’s ruling will impose greater hardships on low-income women in particular. They will have to travel past Lexington on their way to EMW in Louisville to reach what will be the state’s only provider of a medical service that the U.S. Supreme Court has said is a constitutional right.
The effects of the appeals panel’s ruling also will likely include more abortions later in pregnancy, higher medical costs and more attempts at self-induced abortions.
No wonder the panel decided not to publish the opinion, a decision that means the 23-page ruling cannot be cited as precedent in other cases.
The Bevin administration presented no evidence of harm to any patient or any patient complaints about EMW Lexington. The appeals panel nonetheless bought into the administration’s contention that patients faced “substantial risk of harm” from a shabby office and some outdated medicines.
The Lexington facility dispenses pregnancy-ending drugs and performs surgical abortions during the first trimester of pregnancy, two extremely safe outpatient procedures that require no anesthesia and can be performed in a doctor’s office, which is what EMW Lexington has operated as.
The appeals court agreed with Bevin’s lawyers that EMW Lexington must close until a final judgment is rendered or until obtaining a state license as an abortion facility. Obtaining such a license should be quite a feat considering the Bevin administration’s harassment of Planned Parenthood for trying to open a new abortion clinic in Louisville.
Written by Judge Allison Jones of Newport, with Sara Combs of Stanton and Debra Lambert of Somerset concurring, the opinion cites a state Supreme Court ruling in a planning and zoning case as grounds for elevating the “power and dignity” of state government above the dignity, access to medical care and constitutional rights of Kentucky women.
The panel’s misjudgment of what’s fair and equitable will fall hardest on Kentucky families who can least afford it.