KY Supreme Court Orders Lexington Abortion Clinic to Remain Closed

On Aug. 25th, the KY Supreme Court unanimously sided with the Bevin administration and ordered EMW Women’s Clinic of Lexington to remain closed. Below are the highlights from the 27 page Court opinion:

The Facts

  • On Feb. 17, 2016, two surveyors from the Cabinet responded to an anonymous complaint that EMW exists solely as an abortion provider, rendering it ineligible for the private-practice exemption. This was the first Cabinet visit to the clinic since 2006.
  • The surveyors learned that abortions and related procedures were the only medical services the clinic actually performed.
  • Upon inspection, the surveyors found what they perceived to be unsafe and unsanitary conditions.
  • The information about the nature of EMW’s current practice and the onsite inspection by its surveyors led the Cabinet to conclude that EMW was not really a private physician’s office but instead was an abortion clinic—and a dangerously unsanitary one at that.

What This Case Is About

  • This case is not about the right to abortion, but rather the State’s “legitimate interest in seeing that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.”

Abortion Clinic Licensure Requirement

  • An “abortion facility” is defined as “any place in which an abortion is performed.” An abortion facility, like generic health facilities, requires appropriate licensure from the Cabinet.
  • Abortion” is defined as “the use of any means whatsoever to terminate the pregnancy of a woman known to be pregnant with intent to cause fetal death.”
  • The fact that even one abortion is performed there is enough under our statute for the abortion-facility label to apply. Only activity other than abortions can aid EMW in evading the licensure requirements necessary for abortions.

Private Physician Office Exemption

  • EMW almost exclusively engages in conduct highly regulated under state law—the precise type of activity Chapter 216B contemplates in requiring licensure.
  • EMW has failed to demonstrate why it should be exempt from licensure as an abortion facility… 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.

Irreparable Harm

  • The irreparable harm in this case is the “genuine but intangible harm relating to the power and right” of a governing body to enforce the laws the legislature promulgates.
  • Even if the risk of physical harm to patients receiving abortions at the clinic is relatively low, as EMW claims, that stakes no position on the Cabinet’s sovereign authority to seek compliance with what it perceives as an affront to Kentucky statutory law.

Equitable Considerations (Would the public interest be harmed?)

  • Issuing an injunction may impact Kentucky women, and they would have to seek abortion-related services either in Louisville or outside the state. But this ultimately turns to speculation, and we cannot say it outweighs the very real and evident unsanitary conditions found to exist at EMW Lexington, the facts of which are undisputed.
P.O. Box 911111 Lexington, KY 40591 859-255-5400