The administration of Gov. Matt Bevin has ordered the last remaining clinic in Kentucky that provides abortion services to shut down by Monday, though attorneys for the clinic and the ACLU have filed an emergency request in federal court to block the closure, which they call “blatantly unconstitutional.”
On March 13, the inspector general for the Kentucky Cabinet of Health and Family Services sent a letter to EMW Women’s Surgical Center in downtown Louisville indicating its license would be revoked in 10 days due to having deficient transfer agreements with a hospital and ambulatory services in the case of a patient’s medical emergency. The cabinet later extended that deadline to April 3.
However, attorneys for the clinic dispute that the cabinet is concerned about the transfer agreements — having approved of the clinic’s same ones just last year — but is rather trying to outlaw abortion, which is vociferously opposed by Bevin.
“The state’s bureaucratic sleight of hand is fooling no one,” said ACLU attorney Brigitte Amiri in a press release Wednesday. “This is an attempt to ban abortion in Kentucky, plain and simple. We are fighting to keep this from happening.”
Over the past year, the Bevin administration has forced two other clinics to stop providing abortions over licensure issues: the part-time EMW clinic that had long operated in Lexington and the Planned Parenthood clinic in Louisville that had started offering that service just a month earlier. Don Cox, one of the local attorneys for EMW, added in the press release that “With just one clinic to care for the women in need of abortion services, the forced closure of EMW will have devastating consequences for women in Kentucky. The state is hiding behind sham justifications when its true intent is to shut down this clinic and prevent a woman from making a real decision about her pregnancy.”
Spokespersons for Bevin did not reply to an email seeking comment on the cabinet’s order and the clinic’s lawsuit seeking to block its closure.
In a lawsuit filed Wednesday in U.S. District Court, the clinic seeks an emergency temporary restraining order and/or preliminary injunction barring the cabinet from revoking its license. Its attorneys cite last year’s Whole Woman’s Health v. Hellerstedt decision in the U.S. Supreme Court, which struck down similar Texas laws used to shut down abortion clinics. In that decision, the court stated that the Texas law requiring a clinic to have doctors with admitting privileges at a nearby hospital and facilities comparable to an ambulatory surgical center was unconstitutional due to placing an undue burden on a woman’s access to an abortion, while serving no valid medical purpose.
The complaint filed by EMW on Wednesday states that the requirements set forth by the cabinet are “blatantly unconstitutional” both on their face and under the Supreme Court decision “because of the extraordinary burden on the rights of Kentucky women and the lack of any medical justification.” It adds that the clinic has had the same transfer agreement with University Hospital since 2014 and virtually the same ambulance agreement since 2008, both of which were found to be acceptable by the cabinet when it renewed the clinic’s license last year through the end of this May.
The March 13 letter from Inspector General Robert Silverthorn stated that it was “not signed by an authorized representative of the University of Louisville Hospital,” as the signature by the chair of its Department of Obstetrics, Gynecology and Women’s Health does not count. He also stated that the ambulance agreement was insufficient due to not specifically naming the hospital in the transfer agreement.
Referring to the cabinet’s newly discovered deficiencies in the agreements, the complaint states that shutting down EMW would cause “extraordinary” harm while serving “no valid state interest,” as “neither the Requirements themselves nor the Cabinet’s about-face regarding the acceptability of Plaintiffs’ Agreements have any medical justification.” While noting that less than 0.3 percent of abortion patients experience a complication requiring hospitalization on the day of the procedure — with EMW’s rate even lower — the attorneys add that “ambulance companies will readily pick up patients, and hospitals are required by law to accept patients in an emergency,” while each of the clinic’s doctors have admitting privileges at one or more nearby hospitals.
In addition to claiming EMW would be denied due process if the clinic is not given a hearing and judicial review prior to having its license revoked, the complaint goes on to accuse the cabinet of retaliating against the clinic for recently filing a lawsuit challenging a new law forcing abortion providers to give patients a detailed description of an ultrasound of the fetus before the procedure. Given the “deeply suspicious” timing of the cabinet’s original letter coinciding with a key hearing in that other lawsuit — filed along with the ACLU — the complaint states that the cabinet is “targeting Plaintiffs because they provide abortion services and are retaliating against them for filing another lawsuit challenging another abortion provider.”
“If Plaintiffs are forced to close their doors, Kentucky women will have almost no ability to access abortion in their state,” reads the EMW complaint. “Some would attempt to induce abortion without a medical provider; others would be forced to delay their abortions in order to travel long distances to other states, which increases the risk and cost associated with the procedure; and some will be forced to carry to term against their will.”
The Planned Parenthood of Indiana and Kentucky clinic in Louisville had just started to provide abortion services in late-2015 after receiving clearance to do so by the health cabinet of the Beshear administration, but Bevin’s cabinet filed a lawsuit in early-2016 to force it to end such services and pay heavy fines. While PPINK won that case — which is being appealed by the Bevin administration — the clinic still is being denied a license to perform abortions by the cabinet, which also claims that the clinic’s hospital and ambulance agreements are deficient. Notably, University Hospital backed out of its previously signed transfer agreement with the PPINK clinic last year — citing “incredible” outside pressure to do so by an unnamed party — while stating that it would still treat EMW patients without discrimination.
EMW’s complaint filed this week states that the clinic “attempted to secure an additional signature on the agreement with the University of Louisville Hospital,” and in fact secured one from Ken Marshall, the new interim president and CEO of the University Medical Center. However, “shortly after he signed it, Mr. Marshall asked that the amended agreement not be sent to the Cabinet.”
UofL Health Sciences Center spokeswoman Jill Scoggins did not immediately answer an email asking why Marshall requested that EMW not send the agreement with his signature to the cabinet.
William Sharp, legal director for the ACLU of Kentucky, told IL in an email that Marshall signed a hospital transfer agreement for EMW on March 20, but “soon thereafter, however, Mr. Marshall expressed a reservation about doing so and asked that it not be submitted to the Cabinet. After we filed suit on EMW’s behalf, we learned that Mr. Marshall asked that it not be submitted to the Cabinet because, after signing the agreement, he felt that he lacked authority to do so on the University of Louisville’s behalf.”