Abortion opponents have embarked on an almost mythic quest to completely eliminate all legal abortion clinics in certain states over the last two decades, and recently the movement has come within a finger-length of success.
At this point, Missouri, North Dakota, South Dakota, Wyoming, Kentucky and Mississippi all have just one abortion provider within their respective borders. And Arkansas is just one medical abortion clinic away from making the list, too. Most of these states have been hovering at the edge for years — often with court intervention keeping their final clinics open, despite legislative attempts to regulate them out of existence.
But Kentucky, which only recently became a one-clinic state, is the newest — and now it could be the first to end up completely abortion-free.
Kentucky Governor Matt Bevin has made ending abortion access a priority since his 2014 off-year election win. In the two years since he was sworn into office, Bevin has used his far-right administration to stop a new Planned Parenthood clinic from offering medical abortions in the state. He also closed the doors of the Lexington, Kentucky abortion provider by stating that it wasn’t properly licensed as an abortion clinic — despite years of operation in the same space with the same services.
To top off these actions, Bevin signed into law bans on abortion after 20 weeks, as well as a mandatory 24-hour waiting period after an ultrasound.
Still, the ultimate goal of no elective abortion in the state seemed like it would be unreachable — until March, when the governor quietly ordered the state to close EMW Women’s Surgical Center in Louisville, the only clinic left in the state.
“The state’s announcement in a March 13 letter that it is revoking the license makes the EMW clinic the latest enforcement target of the administration of Bevin, an anti-abortion Republican who has called himself an ‘unapologetically pro-life individual,'” the Courier-Journal reported on March 29. “The dispute with the state involves “transfer agreements” that state law requires abortion clinics to have with hospitals and ambulance services should a medical emergency arise for a patient. Inspector General Robert Silverthorn, who oversees such licenses for the cabinet, said in the letter to EMW that its transfer agreements are deficient and don’t adequately protect patients. But EMW, in its lawsuit, said its transfer agreements comply with the law and were approved last year by the cabinet during an annual inspection in which its license was renewed through May 31.”
Transfer agreement requirements became popular within the last few years as a means of closing clinics. The policy necessitates that clinics enter an agreement with a local hospital to care for patients in the rare case of a complication.
Hospitals, who would not turn away a patient in an emergency, are often unwilling to publicly partner with a clinic out of fear of retaliation or harassment — or because they are owned by religious groups that oppose abortion. Often the only hospitals that can enter an agreement willingly are public institutions or those associated with a university.
Anti-abortion legislators then pass laws stating that public hospitals cannot enter into agreements because that would constitute “tax-payer funding of abortion,” as they accept public funds. Eventually a clinic finds it impossible to get an agreement, and the clinic is forced to close.
And that’s precisely the blueprint that Governor Bevin and his administration hope to follow — but one that, for the moment, has been stopped by a judge. With just a few days notice that the clinic must cease operations on April 3, representatives for the clinic filed a suit to stop the closure, and have been granted a 14-day reprieve. “The order, which is valid for 14 days, cites due process concerns as well as evidence that the ‘rights of [the clinic’s] patients would be immediately and irreparably harmed’ without the order,” reports CNN.
If legal history is any indication, the closure will be on hold indefinitely. While transfer agreement issues have effectively closed clinics in states like Ohio and Missouri, they have not been successful in states where the last remaining clinic is at risk.
Jackson Women’s Health Organization fought an order to close Mississippi’s only clinic — due to doctors not having local admitting privileges — and after a multi-year battle, the state eventually lost and dropped the case. Considering the 2016 Supreme Court ruling in Whole Women’s Health v. Hellerstedt that set a new standard for proving medical necessity for abortion regulations, Louisville’s clinic should technically be safe. Then again, much has changed politically since 2016 — including a Supreme Court that may have a different make up once a new abortion case works its way up the legal ladder.
But for now, at least, the clinic remains open, and abortion access supporters are celebrating. Let’s hope they still have as much to celebrate a week from now.
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