Kentucky Fights on for Women’s Health in Abortion Facilities

Catherine Glenn Foster, J.D., M.A.  

In June, while the U.S. Supreme Court was sentencing women to the modern-day abortion back alley, Kentucky’s Court of Appeals unanimously, though temporarily, stopped EMW Women’s Clinic from performing abortions.


The timing of such opposing rulings could not have been more ironic. Justice Stephen Breyer, writing for the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt, informed women in Texas – and nationwide – that their health and safety doesn’t matter in abortion facilities. He based this opinion on the test concocted back in Planned Parenthood v. Casey, that even a commonsense health and safety regulation may be deemed “[u]nnecessary” by the judiciary and thus an “‘undue burden’ on a woman’s right to decide to have an abortion.”


Breyer’s opinion illustrates the distortion that plagues the rule of law in America when it comes to abortion. It’s about shielding abortion clinics from scrutiny, not achieving justice for women. The Washington Post inadvertently got it right in their Hellerstedt headline, when they wrote that the Supreme Court had called the Texas provisions an “‘undue burden’ on abortion providers.” They focus on the businesses, rather than the women they claim to serve. Indeed, Hellerstedt was a win for the abortion business, but a loss for Texas women.


Texas, Kentucky, and other states were and are working to improve women’s health and safety, even – to the extent possible – inside abortion facilities. These states are holding abortion facilities to the same standards as healthcare clinics. And unlike the U.S. Supreme Court, the Kentucky Court of Appeals, a panel composed of three female judges, has applauded and upheld Kentucky law and efforts.

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In March, Kentucky filed a lawsuit against EMW Women’s Clinic in Lexington, which had performed more than 400 abortions in 2015. Based on a February 17 inspection, the Commonwealth provided evidence that the facility was performing unlicensed abortions, was unsanitary, and had expired medication in its procedure room.


Under Kentucky law, all abortion facilities and healthcare clinics must meet common-sense health and safety standards. Abortion facilities must also have transport and transfer agreements with a local ambulance service and a local hospital. But as of February 17, EMW had no agreement with an ambulance service.


After a March loss in the Fayette Circuit Court, the Court of Appeals reversed that opinion and unanimously granted Governor Matt Bevin’s request to close the facility until either it obtains a license or the lawsuit is resolved. The appellate court agreed that “circuit court’s findings and conclusions are clearly erroneous.”


In a statement, Bevin affirmed the decision as an “important victory for the rule of law in Kentucky,” and added, “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.”


Catherine Glenn Foster, J.D., M.A., is an attorney in private practice and an associate scholar at the Charlotte Lozier Institute.


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