- The Washington Times - Tuesday, May 9, 2017

Kentucky could become the first state in the nation without an abortion clinic — if a judge sides with the government in a case that’s set to define how far states can go in putting restrictions on the constitutional right to an abortion.

State officials have said EMW Women’s Surgical Center in Louisville no longer has legally valid proof of having arrangements with a hospital and ambulance company should emergency complications arise during a procedure.

But lawyers say that would leave the state without any operating clinics, and said this would run afoul of the Supreme Court’s rulings that regulations cannot make women unable to exercise their right to abortion.

“If a state forces the closure of all of its licensed abortion clinics, that would likely meet the undue burden standard set forth in Planned Parenthood v. Casey,” Nicole Huberfeld, associate dean of academic affairs at the University of Kentucky, said in an email.

That 1992 case upheld the 1973 Roe v. Wade decision that established a national right to abortion, and laid out the framework for what states could and couldn’t do to impose restrictions.

A number of states in recent years have tested the limits with late-term abortion bans, while others have tried to ramp up the regulations governing abortion clinics — moves that pro-choice activists call thinly veiled efforts to shutter the clinics.

In Kentucky, state law requires an abortion clinic to have a signed agreement with an ambulance company and a local hospital to admit a woman in case of emergency complications. EMW had an agreement with an ambulance company on file for eight years and an agreement with University of Louisville Hospital since 2014, but they were signed by the chair of the OBGYN department and not someone who is “authorized to enter into the agreement,” the state said.

It told the clinic last month it was out of compliance and must shut its doors last month, but has agreed to extend certification while the case is being fought in the courts.

The trial is scheduled for Sept. 6, with the American Civil Liberties Union defending the clinic.

“Under recent Supreme Court precedent, a state may not shut down an abortion clinic with no medical justification,” said Brigitte Amiri, a senior attorney with the ACLU.

Kentucky is one of roughly a half-dozen states that have only one abortion provider.

Carol Savkovich, co-chair of the Kentucky Religious Coalition for Reproductive Choice, said Kentucky used to have three clinics, but under the state’s Republican Gov. Matt Bevin, who took office in December of 2015, it’s down to one.

“The state legislatures for political reasons are making it increasingly difficult for abortion clinics to operate. They are passing more and more targeted regulations,” said Ms. Savkovich. “It used to be common that you could go to your OBGYN and they could perform it in their office.”

Doug Hogan, a spokesperson for the Kentucky Cabinet for Health and Family Services, told The Washington Times that they are trying to defend women’s health by enforcing the law, which has been on the books for 19 years.

He said another clinic affiliated with EMW was shut down last year “because it was filthy and didn’t even have a license.”

“Those sorts of unsanitary conditions can easily give rise to infections or complications that could require emergency transport and treatment at a hospital,” he said.

Legal analysts, though, said the state’s case was probably undercut last year by a Supreme Court decision striking down a similar Texas law that required abortion clinics to meet the same standards as other surgical facilities, including hallway widths and staffing needs.

Writing the majority opinion, Justice Stephen G. Breyer said Texas’s law was less about protecting women’s health than it was an attempt to shutter facilities. Half of Texas’s abortion clinics closed after its law went into effect.

“Those closures meant fewer doctors, longer waiting times, and increased crowding,” Justice Breyer said.

The Texas case also helped sink a Mississippi clinic law earlier this year. That law had required doctors at abortion doctors to have admitting privileges at a hospital.

The state’s only clinic, Jackson Women’s Health Organization, objected, and after a long legal battle Mississippi backed down after saying it couldn’t point to any substantive differences between its law and the Texas law.

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