Louisville abortion clinic won't close for now
The state has agreed to drop efforts to shut down Kentucky's last abortion provider while a federal lawsuit challenging the attempt to close the clinic is pending.
That means that EMW Women's Surgical Center in Louisville, which had faced potential shutdown April 3, will remain open under an agreement between lawyers for EMW and the administration of Gov. Matt Bevin filed Thursday in U.S. District Court in Louisville.
"It's business as usual," said Donald L. Cox, who represents EMW along with the American Civil Liberties Union. "There's no impediment, as there would have been, for a woman exercising her reproductive rights."
Two other clinics, one in Louisville and the other in Lexington, have stopped offering abortions in the past year after enforcement actions by the Bevin administration, leaving EMW as the state's sole abortion provider. One, Planned Parenthood of Indiana and Kentucky, is appealing the state's refusal to issue a license for it to provide abortions at its clinic in downtown Louisville.
Cox said the agreement to keep EMW open has been submitted to U.S. District Judge Greg Stivers, who must sign off on it. But Cox said he expects the judge to do so.
Doug Hogan, a spokesman for the state Cabinet for Health and Family Services, which licenses abortion facilities, said the agreement represents an effort by the state to get the matter resolved quickly, noting "the court agreed to the cabinet's request for an accelerated discovery and trial schedule."
Further, Hogan said, "The state never intended to shut down the EMW facility immediately, since it had the right to a due process hearing."
Cox disagreed, saying that two letters from the cabinet's Inspector General, Robert Silverthorn specifically stated his department was revoking the license, with the final deadline April 3.
"They had every intention of shutting us down," Cox said.
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On March 31, Stivers issued a temporary restraining order preventing the state from closing the clinic, two days after EMW filed a federal lawsuit challenging the state's move as unconstitutional. EMW also claimed the state had violated state law by failing to give it appropriate notice of action against the clinic's license and allowing a hearing.
Under the agreement reached by lawyers for the state and EMW, the restraining order will remain in effect until the case is resolved at trial. Stivers has scheduled a trial for Sept. 6 in Louisville.
The state also has agreed to renew the license of the EMW Women's Surgical Center until the case is resolved, according to the agreement. The current license expires May 31.
A key dispute expected to be resolved in EMW's lawsuit is over documents known as "transfer agreements" to ensure patient care in an emergency. State law requires abortion clinics to have a written agreement with a hospital to accept patients in an emergency and a separate agreement with an ambulance service to transport patients to the hospital.
The state was seeking to revoke EMW's license on the grounds the clinic's transfer agreements were "deficient" even though its inspectors had approved them last year when the clinic got its annual license.
EMW, in its lawsuit, said its transfer agreements comply with state law. But its lawsuit goes further in challenging the requirement, saying such agreements are not necessary and should be struck down.
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Complications from abortion are rare, the lawsuit said, and the procedure "is one of the safest procedures in contemporary medical practice."
Also, hospitals are required by federal law to accept patients in an emergency and local emergency medical services already are available to transport patients to a hospital and do not require a written agreement to do so, the lawsuit said.
The transfer agreements also are part of the dispute between Planned Parenthood and the state over its license. The state has refused to accept its agreement with two hospitals and an ambulance service, a decision Planned Parenthood has appealed.
Hogan, the cabinet spokesman, said the state believes the court will uphold the state law requiring transfer agreements.
"The cabinet is confident the statutory requirement for transfer agreements, which dates back to 1998 and has never been questioned by EMW for 19 years, is necessary to protect the health and welfare of women," Hogan said.
Cox doesn't agree such agreements are necessary.
"They're stupid," he said. "Why do you need a transfer agreement when the hospital is right down the street and has an obligation under federal law to take any patient who shows up at the door?"
Contact reporter Deborah Yetter at 502-582-4228 or at dyetter@courier-journal.com.
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