Joseph Gerth

Opinion Columnist | Louisville Courier Journal

A circuit court judge denied a request from Gov. Matt Bevin's administration to shut down a Lexington abortion clinic immediately, ruling that the state has not shown that the EMW Women’s Clinic is operating illegally.

In a ruling Friday, Fayette Circuit Judge Ernesto Scorsone cleared the way for the clinic to continue operating, saying, “Closing EMW would have a severe adverse impact on the women in the Eastern part of the state.”

Scott White, a lawyer for EMW, said the clinic, which performs only first-trimester abortions two days each week, plans to reopen by next Thursday. It's been closed for the last two weeks.

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Bevin’s spokeswoman, Jessica Ditto, didn’t immediately return an email seeking comment Friday evening. White, however, said he got a call from one of the administration's lawyers informing him that the administration would go back to court next week to seek an emergency ruling from the Kentucky Court of Appeals.

The Bevin administration has targeted abortion clinics for regulatory action in the first months of his term. In February, he sought to block Planned Parenthood from offering abortions at a new clinic it opened in Louisville.

The administration had asked that the judge issue a temporary injunction closing the facility in Lexington while it pursues a lawsuit alleging that EMW is operating without a license to function as an abortion facility.

EMW, however, argues that it doesn’t require a license because it qualifies as a private doctors’ office for several reasons, including the fact that it doesn’t do procedures that require anesthesia.

The clinic pointed out that it began operating as a doctor office in the late 1990s based on a recommendation by the state Cabinet for Health Services and that it was inspected in 2006 by the state, then headed by Republican Gov. Ernie Fletcher, and was not cited for failing to obtain a license at that time.

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Because of that, Scorsone ruled that the clinic has “a strong argument that it is exempt from licensing.”

“The Commonwealth has not established a likelihood of prevailing on its claim that EMW is operating contrary to law,” he wrote.

Furthermore, Scorsone said that the facility is already in compliance with the two most important requirements of an abortion clinic – that it has in place a transfer agreement with a hospital and a transportation agreement with an ambulance service in case there are complications with a procedure.

“The Commonwealth has not established a likelihood of prevailing on its claim that EMW is operating contrary to law,” he wrote.

Bevin’s office sought to close the Lexington clinic following a Feb. 17 inspection in which the Office of Inspector General found the accumulation of dust on shelves, tears in the fabric of an exam table that had been covered with tape, cuts in a linoleum floor and that some medications had expired.

Scorsone noted in his ruling that inspectors testified during a hearing this week that in other cases, those issues would simply be reported to the clinic and it would be given the opportunity to correct them without any attempt to close the clinic down.

Reporter Joseph Gerth can be reached at (502) 582-4702. His email address is jgerth@courier-journal.com.