Ky. high court denies effort to reopen abortion clinic

By Bruce Schreiner - Associated Press

LOUISVILLE (AP) — A Kentucky abortion clinic suffered another setback Thursday when the state’s Supreme Court turned down its appeal of an order that closed the facility two months ago amid a struggle with Republican Gov. Matt Bevin.

The high court upheld a Kentucky Court of Appeals ruling that ordered EMW Women’s Clinic in Lexington to stop performing abortions until it either gets a license from the state or its lawsuit is resolved.

The Supreme Court’s opinion marked the latest development in an ongoing licensing dispute between the clinic and the state Cabinet for Health and Family Services. Bevin’s administration insists the clinic performed abortions without a state license. The clinic’s owner, Ernest Marshall, counters that he’s exempt from the licensure requirement because the clinic is a private physician’s office.

In June, a three-judge panel of the Court of Appeals had reversed a lower court decision in favor of the clinic. The judges questioned whether the clinic would qualify as a private doctor’s office because it had performed only abortions for the past year.

“In consideration of the evidence in the record, there is ample reason to believe that EMW has failed to establish its likelihood of proving its status as an exempted facility,” the Supreme Court said in its unanimous decision. “In turn, we think there is a substantial possibility the cabinet may succeed in proving the clinic is an unlicensed abortion facility.”

Bevin praised the ruling as “proper and necessary” to protect the health and safety of women.

“The laws of Kentucky matter and must be followed, even when individuals, corporations or lower court judges think otherwise,” he said.

The clinic’s attorney, Scott White, said he’s disappointed by the decision, but added he feels “rather bullish on ultimately winning” when the case returns to Fayette Circuit Court for further proceedings. The issue then will be whether a permanent injunction should be issued that would keep the clinic closed until it gets a license from the state.

“The fight for the EMW Clinic to be reopened and the rights of Kentucky women will continue,” White said.

He said his client is trying to fend off “a direct assault by this administration on the settled constitutional right of a woman to a legal abortion.”

In its opinion, the Supreme Court said it also weighed the issue of access to abortion services. With the court-ordered closure of EMW, the only option in Kentucky for women seeking abortion services is in Louisville, the opinion noted.

Of the 3,187 abortions done in Kentucky last year, 411 were performed at the EMW clinic in Lexington, while 2,773 were done at a Louisville clinic, the court said. The other three were done at another facility in Louisville, it said. Lexington is about 80 miles east of Louisville.

Since the overwhelming majority of the abortions were done in Louisville, the court said, “it stands to reason that an overwhelming majority of women seeking an abortion in Kentucky will not be deterred by this decision either way.”

The Supreme Court said its ruling dealt with the temporary injunction closing the clinic, not on any broader issue involving abortion rights.

“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 court said. “We wish to be clear at the outset that this case is not about the right to abortion.”

By Bruce Schreiner

Associated Press

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