FRANFORT, Kentucky, June 17, 2016 (LifeSiteNews) – A Kentucky appeals court sided with Republican Governor Matt Bevin on Wednesday and issued a temporary injunction against a Lexington abortion facility his administration had sued for several violations, including not being properly licensed.
Reversing a lower court’s order, a three-judge panel of the Kentucky Court of Appeals, consisting entirely of women, unanimously agreed with Bevin’s administration that the EMW Women's Clinic in Lexington must be licensed as an abortion facility and not simply as a physician’s office.
An abortion facility is “any place in which an abortion is performed,” the appeals court panel ruled, and, “There is a substantial legal issue as to whether EMW Lexington qualifies as a private physician’s office, where it performed only abortions in the last year.”
The state of Kentucky sued EMW in early March of this year, contending the premises were “filthy,” that the facility was using prescriptions that were nearly two decades out of date, performing abortions without a proper state license, and also had no ambulance agreement to transport women injured during botched abortions.
Just weeks after the suit was filed against EMW, Fayette Circuit Judge Ernesto Scorsone, a known abortion proponent, ruled against the governor, saying that evidence indicated, “that EMW is operating legally” and that “closing the clinic is against the public interest.”
The appeals court judges said Scorsone had misinterpreted the licensing requirements, KyForward.com reports, and failed to give proper weight to the evidence, which was that the entirety of what EMW does is perform abortions and related procedures.
EMW owner Doctor Ernest Marshall of Louisville had testified that the Lexington EMW location had “originated as a doctor’s office” but later narrowed its line of work, saying it was a simple facility compared to his EMW Women’s Surgical Center in Louisville, which is licensed as an abortion facility.
The Louisville abortion facility performed 2,773 abortions last year, according to Marshall, whereas the Lexington facility did 411 abortions, performing them only in the first trimester.
A February inspection of the Lexington EMW by the state’s state Cabinet for Health and Family Service (CHFS) was the first conducted of that facility in 10 years.
Scorsone had said Marshall “has a strong argument” that he didn’t need an abortion license because the CHFS came to that conclusion in the 2006 inspection, and also the facility doesn’t have $1.5 million worth of equipment, the point at which an abortion facility license is required.
However the appeals court said in its ruling, “We see no reason why an exemption determination should be determinative a decade later,” after the category of the facility had changed.
The court said as well that Scorsone also erred in saying denial of the injunction would not cause irreparable injury, because the cabinet and the citizens would be harmed “if the cabinet is not allowed to correct the alleged violations of its licensing requirements.”
The three judges also said it is a legal presumption that Marshall could have rebutted but did not, and cited the latest CHFS inspection, which found “expired medications, defective equipment, [a] torn examination table and dust accumulation.”
Previously one of three abortion facilities in the state, the Lexington EMW was the second to be sued by Bevin since he took office, the first being Planned Parenthood, which was sued in February for performing illegal abortions.
Wednesday’s ruling leaves Marshall’s Louisville facility as the sole abortion provider in the state.
To the question of abortion availability in eastern Kentucky with the injunction, the court said Marshall had provided no evidence pertaining to the “the location of the women EMW Lexington serves,” noting as well that he refers women who are past the 12th week of pregnancy to his Louisville facility.
“As the cabinet points out, this case is not about a woman’s right to an abortion,” the appeals court ruling stated. “The cabinet is not seeking to prevent women from obtaining abortions [but] to enforce its right to regulate the manner in which abortions are performed in this commonwealth.”
Bevin welcomed the decision.
“Today marks an important victory for the rule of law in Kentucky,” he said in a statement. “We are pleased by the Court’s recognition that an unlicensed abortion clinic is prohibited from performing abortions. This has been our administration’s stance from the beginning. This is the right and necessary ruling to ensure that the health and safety of women are protected.”
Reuters reports that an attorney for the abortion facility said it would appeal the ruling to the Kentucky Supreme Court.