- Associated Press - Thursday, September 7, 2017

LOUISVILLE, Ky. (AP) - A high-ranking health care regulator faced tough questioning Thursday from an abortion clinic’s attorney on the second day of a federal trial that could determine whether Kentucky becomes the nation’s first state without an abortion facility.

The questioning delved into the state’s issuance of emergency regulations that tightened rules in a licensing fight between the state and EMW Women’s Surgical Center in Louisville.

State officials say the clinic lacks proper agreements with a hospital and an ambulance service in case of medical emergencies involving patients.

Clinic attorney Donald L. Cox also focused on the chain of command in crafting those new rules issued in June, and whether those decisions involved Gov. Matt Bevin’s office.

State health regulator Robert S. Silverthorn Jr. testified that the new standards were aimed at offering “clarity” for clinics trying to meeting licensure requirements.

Silverthorn plays a key role in licensing decisions as inspector general of the Kentucky Cabinet for Health and Family Services. His administrative reach includes licenses for abortion clinics.

Silverthorn told Cox that he was looking for a way to ensure EMW can comply with the requirements. That set off a tense exchange. Cox replied that the clinic has yet to achieve compliance in the eyes of state regulators.

“That’s not because of anything the state has done,” Silverthorn responded. If anyone was impeding EMW’s licensing efforts, he said, it was probably the hospitals.

The trial revolves around the licensing fight that began in March when Bevin’s administration claimed the clinic lacked proper transfer agreements and took steps to shut it down.

The clinic countered with a federal lawsuit to prevent the state from revoking its license, arguing that doing so would violate a woman’s constitutional right to an abortion.

U.S. District Judge Greg Stivers blocked the clinic’s closure until the dispute could be heard at trial. Stivers is hearing the trial without a jury. The trial is expected to wrap up Friday.

If the state prevails at trial, EMW’s lawyers say Kentucky could become the first state in the nation without an abortion clinic.

The EMW clinic and Planned Parenthood of Indiana and Kentucky are challenging a nearly 20-year-old Kentucky law requiring abortion clinics to have the transfer agreements with a hospital and transportation agreements with an ambulance service.

Planned Parenthood claims that Bevin’s administration has used those agreements to block its request for a license to provide abortions in Louisville.

State regulators defend those conditions as safeguards to protect women’s health. Attorneys for EMW and Planned Parenthood say the requirements lack any medical justification.

During his testimony, Silverthorn said he didn’t recall receiving any input from doctors when crafting the emergency regulations.

Planned Parenthood attorney Karen Johnson-McKewan later told reporters that underscored her side’s contention that there’s “no medical support for what they’re trying to do here.”

During Silverthorn’s testimony, Cox also delved into whether the governor’s office helped orchestrate the licensing fight against EMW.

The Republican governor has called himself an “unapologetically pro-life individual.”

Silverthorn denied communicating with Bevin’s office regarding the abortion clinic.

Cox contended that the matter was discussed at the “very highest levels” of state government, pointing to a series of emails involving EMW. He noted that the recipients of those emails included Bevin’s general counsel, Steve Pitt.

Cox said the EMW clinic had operated for about 36 years before it faced a licensing struggle that threatened its existence.

Meanwhile, the trial took a surprising twist Thursday when Stivers met privately with attorneys in the case. The recess lasted about an hour as the judge met separately with lawyers for the state, followed by EMW’s attorneys and then with Planned Parenthood’s legal team.

Stivers did not comment on the meetings when the trial resumed, and attorneys declined to offer details.

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