Kentucky’s Last Remaining Abortion Clinic Could Be Forced to Shut Its Doors

Several times each week, well before she’s due to be at work, Christine heads into downtown Louisville where she dons an orange safety vest and volunteers as an escort outside the only remaining abortion clinic in Kentucky.

Outside the nondescript, low-slung brick building that houses the EMW Women’s Surgical Center, she joins forces with a cadre of other volunteers who come Tuesday through Saturday around 7 a.m. to help patients make it safely to their appointments. Sometimes this means providing directions to nearby parking; other times it’s engaging in light conversation while walking patients to the door. It almost always means creating a barrier between the clinic’s patients and the groups that regularly gather here to protest the continued provision of safe and legal abortion.

Unlike many abortion clinics across the country, which are set back from the public right of way, the EMW clinic sits right on a public sidewalk with just a small buffer zone to separate patients and protesters. The set up often breeds tension. “It’s a very busy sidewalk with a lot of commuters who are walking to work. It’s downtown,” says Christine, who asked that her last name be withheld to protect her privacy. “We’re not necessarily trying to control the chaos, we’re trying to make the best out of a chaotic situation.”

Three different groups of protesters frequent this block of West Market Street, all with the common goal of ending legal abortion.

There are the Catholics who stand vigil, saying the rosary while lining both sides of the sidewalk to create an “eerie and disconcerting” gauntlet for patients to run, Christine says. There are the “green vesters,” protesters generally associated with one of the area’s mega-churches, who wear vests that mimic those worn by the clinic escorts and consider themselves “sidewalk counselors,” according to Christine. “They will approach their cars, they will knock on their car windows. But their approach is ‘let us help you,’ which is funny because they’re literally chasing people down,” she says.

And then there are the protesters affiliated with Operation Save America and similar Christian fundamentalist groups. “They are aggressive, but not necessarily in a ‘we want to help’ way,” Christine says. “It’s the ‘we’re trying to scare you’ way.” They carry big signs depicting aborted fetuses or the names and images of the doctors working inside the clinic; they shame patients and call them murderers. In July, members descended on Louisville for a national conference — and turned out en masse outside the EMW clinic.

Operation Save America’s choice of Louisville for its summer conference was timely: Since March, state officials, including Gov. Matt Bevin, have made a concerted effort to shutter the EMW clinic. If successful, the move would make Kentucky the first state to effectively ban abortion.

At issue is a statutory requirement that abortion clinics have a transfer agreement with an acute care hospital and a transportation agreement with an ambulance service. State officials insist the regulation is necessary to ensure competent and timely care in the event that a woman suffers a significant complication arising from her abortion.

EMW has been in compliance with the state’s regulations since they were enacted in 1998. So it was something of a surprise when state officials decided the clinic’s agreements were deficient earlier this year. In a March 13 letter, the Kentucky Cabinet for Health and Family Services told EMW that if it did not fix the alleged problems within 10 days, it would lose its license and be forced to shut its doors.

The move prompted EMW to file a federal lawsuit challenging the regulation — the agreements were never necessary to ensure health and safety in the first place, the clinic argues — and alleging that the state’s sudden determination was nothing more than a political move, an unconstitutional violation of due process intended solely to ban abortion in the state.

On March 31, federal district Judge Greg Stivers barred the state from taking action against EMW until he could hold a full hearing and issue a ruling. A three-day hearing on the matter took place in early September and now the fate of the clinic — and women in Kentucky in need of abortion care — is in Stivers’s hands. “The stakes in this case couldn’t be higher,” Dr. Ernest Marshall, who opened EMW in 1980, told the Associated Press. “The very right to access legal abortion in the state of Kentucky is on the line.”

“Is Every State Required to Have an Abortion Clinic?”

The regulations at issue were enacted in the wake of a scandal regarding the allegedly abysmal conditions inside a private Louisville abortion clinic run by Dr. Ronachai Banchogmanie. At the time, there were no regulations on private clinics such as his, and according to articles in the Louisville Courier-Journal, the facility was filthy, roach-infested, and chronically understaffed.

The state legislature acted swiftly to set up a host of new regulations for all abortion clinics, including the transfer and transportation requirements.

And it appeared they were working just fine — at least until late 2015, when Planned Parenthood of Indiana and Kentucky applied for a license to open a clinic in Louisville. PPINK secured a transfer agreement with the OB-GYN department of the University of Louisville Hospital and a transport agreement with Louisville Metro EMS. Officials with the Cabinet for Health and Family Services signed off, and the clinic began providing abortions on December 3, 2015.

Seven weeks later, however, the clinic ceased providing abortion care — and has never resumed — after receiving notice from the cabinet stating that its agreements were deficient. Importantly, the state alleged that the head of the OB-GYN department at the hospital was not authorized to sign the agreement — even though there was nothing in the statute to back up this contention.

Nonetheless, on January 29, 2016, the clinic filed a new agreement, this time signed by the president of the hospital. Just weeks later, the hospital abruptly terminated the agreement. It seems the move was prompted at least in part by Bevin, a foe of Planned Parenthood who had just started his term as governor.

Bevin has promised to do what he can to end abortion in the state. “We must continue to fight this scourge that is the taking of innocent life,” he said in February. “It’s worth it … and Kentucky is going to lead the way.”

According to emails contained in court filings that were exchanged by hospital officials, the hospital’s decision to sign the agreement with PPINK was giving Bevin “heartburn.” In an email dated February 23, 2016, a hospital lobbyist wrote that he’d been told by the governor’s counsel, Steve Pitt, that it was “absolutely [Bevin’s] intent to do something” about it.

That something turned out to be a budget proposal that would withhold state money from any organization that entered into a contract with an abortion provider, meaning the University of Louisville Hospital would stand to lose funding if it partnered with PPINK or EMW. It wasn’t long before the hospital pulled out of its agreement with PPINK.

The dustup sent PPINK back to the drawing board, and within months, it had secured two new transfer agreements, one with a hospital in Lexington, some 70 miles away, and another with a hospital roughly 5 miles away, just over the Ohio River in Indiana. In September 2016, the state rejected the clinic’s bid to resume its operations. This time, the cabinet opined that Lexington was too far away, and the Indiana hospital wouldn’t work because the transfer facility had to be licensed in Kentucky. Again, state law made no mention of a distance requirement or the need for a facility to be in-state.

It was the controversy over PPINK’s application for a license to provide abortion care that ultimately focused state officials on EMW. According to deposition testimony, cabinet staff first sought to review EMW’s transfer and transportation agreements back in February 2016 at the height of the PPINK controversy. At first, officials concluded that everything was in order and renewed the clinic’s license. Then suddenly, in March 2017, the state changed its mind.

Among other alleged deficiencies, the state complained, as it had with PPINK, that EMW’s transfer agreement was signed by the head of the OB-GYN department at the University of Louisville Hospital and not by its president. The letter also noted that regardless, “the hospital withdrew from a similar arrangement with another abortion facility in 2016, and may have done so with” EMW as well.

The impact of Kentucky’s “about-face” on the agreements “could not be more drastic,” EMW’s lawyers wrote in their initial court filing. “If EMW is forced to close its doors, there will be no licensed abortion facility in the Commonwealth of Kentucky, and Kentucky women will be left without access to a critical and constitutionally protected medical procedure.”

To hear the state tell it, the transport and transfer agreements are essential to protect women who seek abortion care. And it denies its actions were politically motivated. “Is every state required to have an abortion clinic, even if the clinic jeopardizes its patients’ health and safety?” lawyers for the governor’s office and cabinet wrote in their reply to EMW’s lawsuit.

If EMW cannot comply with the regulations and is forced to close, that wouldn’t be a problem for Kentucky women, the state alleges, because women could still travel out of state for care — to Indiana, Missouri, Ohio, or Tennessee. The state says that “a very large fraction” of Kentucky women live within 125 miles of an out-of-state clinic, and “virtually” all live within 150 miles of another clinic, meaning there would be no “undue burden” on women seeking care — the standard by which the courts consider the constitutionality of abortion restrictions.

Kentucky also claims that EMW — and theoretically PPINK — wouldn’t have to shutter operations so long as it kept up good faith efforts to find the head of an in-state hospital to sign a transfer agreement. The clinic would be eligible for a waiver if it could demonstrate that it had “exhausted all reasonable efforts” to obtain the agreement, and it could conceivably receive a waiver in perpetuity. “Thus, even if a facility in Kentucky cannot obtain a transfer agreement with a hospital, it may apply for and be given serial extensions to do so,” lawyers wrote. “Clearly, there would be no undue burden on a woman’s right to an abortion.”

In the early hours of the morning, clinic escorts gather outside the EMW Women’s Surgical Center, preparing for another day of protests by Operation Save America on July 28, 2017.

“Good Sense” but No Evidence

Lawyers for EMW, including Brigitte Amiri, a senior staff attorney with the ACLU’s Reproductive Freedom Project, say the state’s arguments are simply wrong.

For starters, they argue that there is no medical reason for a transfer or transport agreement. Abortion is among the safest medical procedures — nationally, less than .3 percent of patients require hospitalization following the procedure. EMW’s record is even better, says Amiri. There have been just three hospital transfers in the last two years. Each time, the clinic’s safety protocols were followed and the transfers went smoothly, she said. Moreover, federal law requires hospitals to accept anyone who presents for emergency treatment, making any transfer agreement superfluous.

And it appears there is scant evidence that the agreements have actually helped protect any patients in the state — at least as far as Vickie Yates Brown Glisson, the head of the Cabinet for Health and Family Services, is aware. In deposition testimony, she said that “good sense” told her that the agreements were important, though she had no evidence to back that up. “Evidence, written evidence or whatever? No, I don’t have, but I’m assuming there may be things out there because those [regulations] have been long required I think.”

In truth, the agreements required for abortion clinics are not required for most medical practitioners in Kentucky, including individual doctors, regardless of the seriousness of the procedures they perform. Although the mortality rate for liposuction is 28 times higher than abortion, for example, the procedure can be performed in a doctor’s office that has no transfer or transport agreements in place. In fact, under current Kentucky law, Banchogmanie would be allowed to perform abortions in his private office without having either agreement.

And, as Amiri points out, it wasn’t that EMW didn’t have a transfer agreement, but merely that the state “didn’t like that it was signed by the OB-GYN department” — despite nothing in the law that says that is wrong.

It was more than two months after EMW filed the lawsuit (which PPINK ultimately joined) that the cabinet invoked an “emergency” process — without providing public notice or an opportunity for public comment — in order to rewrite the regulations so they would conform to the rationale it gave EMW and PPINK about why their agreements were deficient. The changes specified that an “authorized” individual with the hospital must sign the agreement, that the hospital must be in-state, and that it must be within a 20-minute drive of the abortion clinic. The state says the changes were necessary to “clarify” what the statute meant. But, to date, the statute itself has not changed.

“The rules came out all of a sudden, out of the blue, and they said they’re going to take effect immediately,” Amiri said. “We have seen this before, this litigation-inspired attempt to say something different, to change the rules of the game, or to try to make something sound not unconstitutional when it really is.”

EMW’s predicament is reminiscent of what Texas abortion providers went through after the 2013 passage of an omnibus abortion bill that mandated onerous restrictions on providers — including a requirement that every abortion doctor have hospital-admitting privileges within close proximity to each clinic at which they practiced.

The fact that abortion is such a safe procedure made it nearly impossible for the doctors to obtain privileges: In order to get privileges, a doctor has to regularly have patients moved into the hospital, which the abortion doctors did not do.

A group of providers sued, claiming that the requirement was unconstitutional. In June 2016, the U.S. Supreme Court agreed. There was no public health benefit to the regulation, and it placed an undue burden on women seeking to exercise their right to abortion.

Amiri argues the regulation at issue in Kentucky is exactly like the one struck down in Texas. “There is no real difference. It’s really just a question of nomenclature,” she said. “It’s about a business arrangement with a hospital, just like the admitting privileges that were at issue” in Texas.

In defending its regulations before the courts, Texas made arguments similar to those Kentucky has put forward — including that women could simply travel to neighboring states to obtain abortion care if clinics were to close. But in striking down the Texas law, the Supreme Court rejected the idea that the state could count on its neighbors to uphold its residents’ constitutional rights.

Kentucky’s insistence that women wouldn’t be blocked from obtaining care because other states would fill the need also highlights a flaw at the heart of the state’s case. Not all of the states surrounding Kentucky have a regulation on the books requiring abortion providers to have transfer and transportation agreements. Tennessee and Ohio do, but Tennessee’s law has been enjoined and the ACLU is currently challenging the Ohio regulation. Indiana does not require a transfer agreement, nor does Missouri. If the requirement is important enough that Kentucky would close its last remaining clinic, why would it be content to send women to a state with less stringent rules?

The same problem is highlighted by the state’s insistence that if EMW just keeps trying to find a hospital to partner with, it will potentially be eligible for an indefinite waiver. According to Amiri, that “completely undermines their argument that these are required for patient safety.”

“Defendants cannot meet their burden to show that the hospital transfer and transport agreement serve women’s health at all, let alone that these agreements are so crucial for women’s health to warrant the closure of the last abortion clinic in the Commonwealth,” EMW’s lawyers wrote.

A protester from Sisters for Life uses a speaker system to yell at clients through the walls of the EMW Women’s Surgical Center on July 28, 2017.

Women in Kentucky Will Suffer

With the Operation Save America members in town in July, the chaos outside the EMW clinic was “turned … up to 11,” recalls Christine. “It was just so compounded with so many people in that tight space, it got very nerve-wracking.”

U.S. marshals were on the scene and police bomb squad members were at the ready. The protesters brought sound equipment, including large speakers, and a line of children raised their hands up behind clinic escorts as the crowd yelled “Jesus!” in unison. One protester roamed behind the escort line while filming with her cellphone. “Federal marshals here, protecting this death camp, where babies are being slaughtered inside right now,” she narrated. “Federal marshals should shut this place down; Governor Bevin must shut this place down.”

But if that happens, says Christine, women in her state will suffer. In her years of being a clinic escort, she’s learned that there are many reasons women seek abortion care, and she believes that protesters like those with Operation Save America make too many assumptions about the women coming to the clinic. “That’s something that we hit really hard in our training with escorts: Assumptions, they will be turned on their head every time,” she says. “Often we think of this narrative as teenage pregnancy, or we think of it as a drunken mistake, hook-up kind of thing.” But that’s not what she sees at EMW. “A lot of clients already have kids; a lot of clients have multiple kids. A lot of clients are older. A lot more clients than you would think have medical issues.

“And it’s just like any other medical procedure; it’s like anybody that is going to a doctor for any reason, you know? It’s just such a broad swath of people, and everybody’s story is different.”

Among the important things the escorts do, she said, is help to normalize abortion — in the face of shouting protesters, they try to remind people that abortion is a legal procedure, and a woman does not need to explain to anyone why she is seeking care. “We are conditioned to have to defend our actions,” she says. “If someone is telling you why they’re here, why they’re doing this, that’s fine. But I will always say, you don’t owe me or any of these protesters any explanation.”

Top photo: Operation Save America instructs a group of children to pray at the escorts and clinic on July 28, 2017. The clinic escorts turn their backs.