Trial ends with no verdict in sight on fate of Kentucky's last abortion clinic

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Posted: Sep 9, 2017 8:34 AM EDT

Photo courtesy MGN

By Ellie Kaufman,.CNN

(CNN) -- After a three-day trial between Kentucky's last open abortion clinic and the Kentucky governor's administration, the fate of the clinic still hangs in the balance.

Attorneys agreed to submit final written arguments to U.S. District Judge for the Western District of Kentucky Greg Stivers within 60 days of the trial's conclusion, and the judge's verdict will follow in the weeks or months after that. There is no timeline for when Stivers plans to deliver a verdict.

Both sides tried to answer one central question throughout the trial: whether an abortion regulation put in place and enforced by Kentucky's state government is constitutional. The regulation in question is a state statute mandating that abortion clinics have transfer agreements with hospitals and transport agreements with ambulance services to obtain a state-issued abortion license.

Gov. Matthew Bevin's general counsel and defense attorney in the trial Steve Pitt said that the statute was adopted to "protect the health and safety of women."

"This is not an antiabortion bill, and that is never what this case has been about," Pitt said after court adjourned.

While the statute became state law in 1998, it has re-emerged as a point of contention in the past two years. The state denied Planned Parenthood's abortion license to provide abortions at the organization's Louisville facility because its agreements were deemed inadequate by state officials in the Cabinet of Health and Family Services, the office that grants the licenses.

EMW Women's Surgical Center's license was revoked last March for what the state cited as a deficiency in their agreements as well. EMW is the only abortion clinic operating in Kentucky right now. After its license was revoked, the center filed a lawsuit against the governor's administration, which resulted in the trial.

The clinic was granted a temporary restraining order so it could remain open until a judge ruled in the case.

During the trial, no medical study was cited by the state's defense showing transfer and transport agreements improve women's health care. Two OB-GYN doctors -- Dr. Paula Hillard, a medical professor at Stanford University, and Dr. Christine Cook, a medical professor at the University of Louisville -- testified on behalf of the plaintiff. Both said these agreements were not necessary for abortion clinics.

They testified that federal law already requires emergency rooms to care for any patient who shows up at one, and 911 ambulance services respond to all emergencies regardless of where the call is coming from.

Dr. Richard Hamilton, chair of the Emergency Medical Services department at Drexel University College of Medicine, testified as an expert witness that he believed transfer and transport agreements between hospitals and out-patient facilities were necessary to "improve patient outcomes and safety." Hamilton confirmed that no medical study had been done to show evidence demonstrating these agreements improve patient health.

"There is no evidence to show that transfer agreements enhance patient safety at all," ACLU Attorney Brigitte Amiri said after the trial concluded. "In a court of law, you have to have evidence. There is no evidence that shows a hospital transfer agreement does anything to protect patient safety."

Because the central question in the case is whether both the existence and enforcement of these regulations poses an "undue burden" on a woman's right to abortion, the EMW Woment's Surgical Center -- the plaintiff, along with Planned Parenthood, in the case -- spent a good portion of the trial trying to show that the governor's administration was making it impossible for their abortion clinics to operate in the state.

The inspector general for Kentucky's Cabinet of Health and Family Services, Robert Silverthorn, former acting Inspector General for CHFS Stephanie Hold, and senior adviser for CHFS, former chief of staff, Steve Davis testified during the trial.

Silverthorn informed EMW that there were deficiencies with its abortion license last March. The license had previously been renewed through June 2017 until the clinic received that notice.

After the judge granted a temporary restraining order to EMW in March, state officials passed an emergency regulation to the statute. In his testimony, Silverthorn said that no doctors had been consulted in writing the emergency regulation, which updated requirements for transport and transfer agreements.

During questioning by EMW's attorney Don Cox, Silverthorn said, "I'm looking for a way to make your client compliant ... you're doggone close."

"You know that expression in the military that close only counts with grenades?" Cox said.

"Yes," Silverthorn replied.

When Hold was the acting inspector general for CHFS, she signed the letter denying Planned Parenthood's license in January 2016. In her testimony, Hold revealed that Davis, at the time chief of staff of CHFS, had asked to review Planned Parenthood's application for an abortion license, and then later requested all materials for the application be sent to him.

Hold also stated that she had a meeting with Davis and Pitt on the day after Planned Parenthood's license was denied. Davis was appointed to his position by members of Gov. Bevin's new administration at the end of 2015.

Patti Stauffer, vice president of public policy for Planned Parenthood of Indiana and Kentucky, testified that while they tried to meet the state's requirements, it felt hard to accomplish.

"We want to abide by state law and these are the rules. I tried in many ways to get the right agreement," Stauffer said during her testimony. "It just felt as if the rules kept changing."

No direct evidence of government pressure was cited during the trial.

"There was not one iota of proof put in this record in this trial by Planned Parenthood or EMW that that actually occurred," defense attorney Pitt said after the trial concluded.

The state argued throughout the trial that a woman's right to abortion would not be infringed upon if all of the abortion clinics in Kentucky closed, because women could access abortion clinics in a number of cities in neighboring states.

In Silverthorn's testimony, defense attorney Jennifer Wolsing showed Silverthorn a chart he had made listing cities in Kentucky and the mileage from those cities to cities in nearby states that have abortion clinics. Silverthorn said he had called the cities listed on the chart to find out if they had abortion clinics, but under cross examination from the plaintiffs' attorneys, Silverthorn said he did not know details such as whether the clinics were open, the cost of procedures at the clinics, or until what gestation period they perform abortions.

When plaintiff's attorney Robert Uriarte asked Silverthorn if he personally had made the calls to the clinics, he said he had not because "being a male it was easier to have a female make the call."

The-CNN-Wire