         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                         NOT TO BE PUBLISHED



               oi5uprrtur Court of                  firtlfuritu
                                                  fIc

                               2016-SC-000328-I




EUBANKS & MARSHALL OF LEXINGTON,                                          MOVANT
PSC, D/B/A EMW WOMEN'S CLINIC OF
LEXINGTON


                   ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO. 2016-CA-000444
                  FAYETTE CIRCUIT COURT NO. 16-CI-00813


COMMONWEALTH OF KENTUCKY, EX                                       RESPONDENT
REL. CABINET FOR HEALTH & FAMILY
SERVICES



                    OPINION AND ORDER OF THE COURT

                     DENYING INTERLOCUTORY RELIEF

      Kentucky law requires all health facilities where abortions are performed

to be licensed by the Cabinet for Health and Family Services. But state law

exempts the private offices or clinics of physicians from any licensure

requirements. The Cabinet filed suit in circuit court seeking to enforce the

abortion-facility licensure requirement upon EMW Women's Clinic of

Lexington, Kentucky, which had provided abortion services for several years as

a private physicians' office with the Cabinet's approval. The Cabinet also moved

the circuit court for a temporary injunction directing EMW to stop performing

                                        1
abortions until a determination of its legal status as an abortion facility or a

private physician's office. The circuit court denied the temporary injunction.

But the Cabinet requested and received interlocutory relief from the Court of

Appeals, which reversed the circuit court's decision and issued a temporary

injunction itself. The question before us is whether the Court of Appeals

abused its discretion by reversing the circuit court and enjoining the operation

of EMW pending the outcome of the litigation over the licensure dispute. We

hold it did not.


                   I. FACTUAL AND PROCEDURAL BACKGROUND.

      Eubanks & Marshall of Lexington, PSC, d/b/a EMW Women's Clinic

(EMW) formed in 1989 and has operated as a women's care center in Lexington

ever since. The practice is now owned by Dr. Ernest Marshall, and he has been

the sole owner since his partner, Dr. Eubanks, died in 2013. Dr. Marshall is

board certified in obstetrics and gynecology, and the practice once offered

medical services in those related fields. The practice, during much of its

history—particularly before Dr. Eubanks's death—accepted patients for routine

women's health services such as performing Pap tests and providing

contraception.

      EMW also routinely performs early-stage abortions. It performs both

medical abortions (abortions induced through oral pharmaceuticals) and

surgical abortions (physical removal of the fetus) for women who are up to

twelve weeks' gestation. Women choosing to terminate a pregnancy beyond

twelve weeks' gestation are referred to EMW's Louisville office, which offers

more comprehensive advanced-stage procedures. Abortion services were once


                                         2
just one among an array of women's healthcare services offered by EMW, but

since Dr. Eubanks's death, abortion has predominated EMW's business.

Despite being one of only three abortion providers in Kentucky, on the advice of

counsel, Dr. Marshall chose not to seek licensure as an abortion clinic under

the theory that his practice was statutorily exempt as a private physician's

office.

          On February 17, 2016, Lori Heckell and Elizabeth Richards, two

surveyors from the Cabinet responded to an anonymous complaint that EMW

exists solely as an abortion provider, rendering it ineligible for the private-

practice exemption. Heckell and Richards visited the clinic and inspected it,

inquiring into its ownership and its licensure. This was the first Cabinet visit to

the clinic since 2006.

          During the visit, the surveyors learned that Dr. Marshall was the sole

owner of the facility, although the employees could not offer documentary proof

at the time. But more importantly, the surveyors learned that abortions and

related procedures were the only medical services the clinic actually performed.

They also learned that EMW was not licensed as an abortion clinic. After

gathering this information, the surveyors asked for and received consent to

inspect the premises.

          Upon inspection, the surveyors found what they perceived to be unsafe

and unsanitary conditions. The examination table was in a dilapidated

condition, its upholstery torn and patched with tape. Layers of dust, dirt, and

grime covered medical equipment and instruments in the facility, prompting

the surveyors to speculate that it had not been cleaned in weeks. The Autoclave

machine—a machine used to sterilize medical instruments—had apparently
                                     3
not been cleaned for months, despite manufacturer instructions that it must be

cleaned weekly. Oxygen tanks had a noticeable dust buildup. The facility's

intubation kit—a medical device used to force air into a patient's lungs in the

event she is unable to breathe on her own—lacked an Ambu bag, rendering it

useless. And the cabinets were filled with expired medications with labels

yellowed with age. Some medication in stock had been expired for nearly

twenty years.

          The information about the nature of EMW's current practice and the on-

site inspection by its surveyors led the Cabinet to conclude that EMW was not

really a private physician's office but instead was an abortion clinic—and a

dangerously unsanitary one at that.'The Cabinet then filed suit in circuit court

seeking penalties against EMW for operating an unlicensed abortion clinic and

a cease-and-desist order to stop it from performing abortions until it was

appropriately licensed. EMW never responded to the Cabinet's complaint, so

the Cabinet moved to temporarily enjoin EMW from operating its Lexington

clinic until it receives appropriate licensure from the Cabinet as an abortion

clinic.

          EMW eventually did respond to the temporary injunction motion, and the

circuit court conducted an evidentiary hearing. The hearing included testimony

from both Cabinet surveyors, EMW employees, and EMW owner-physician Dr.

Marshall. During his testimony, Dr. Marshall admitted that EMW only

performs abortions and that he closed his private practice in 2011. Yet Dr.

Marshall insisted that EMW is exempt from abortion-facility licensure

requirements; he still considers it a private physician's office because EMW


                                          4
offers other women's health services. And the record reflects that in 2006, a

Cabinet assessment labeled his clinic as such.

         After two days of hearings, the circuit court denied the temporary

injunction motion. The circuit court concluded that the Cabinet had not

demonstrated a "likelihood of success on the merits" and that equitable

considerations for women seeking abortions prevented the court from issuing

the injunction. The circuit court rested its decision heavily on the type of

abortion procedures performed at EMW Lexington—first trimester abortions

requiring little to no anesthesia. The Cabinet then sought interlocutory relief in

the Court of Appeals.

         The Court of Appeals reversed the circuit court's order and granted the

Cabinet's motion for interlocutory relief by enjoining EMW from performing

abortions at its Lexington facility until the underlying case reaches final

judgment or EMW obtains an abortion-facility license from the Cabinet. The

appellate panel determined that the circuit court had misapplied the legal

principles relevant to assessing the Cabinet's claims and that its order denying

temporary injunctive relief to the Cabinet was unsupported by proper legal

considerations. EMW now seeks relief in this Court from the Court of Appeals'

order.


                                       II. ANALYSIS.

         Abortion is likely the most divisive issue in a divisive political culture. We

understand that the issues of abortion and access to those procedures stoke

the passions of the collective body politic like no others, but we hope to

reassure the public that today's opinion is about neither of those issues.


                                            5
Instead, this case involves the applicability of state statutes to a particular

party—state statutes that have not been challenged in this case as

incongruous with any overarching federal law.

      The United States Supreme Court has consistently held that the "State

has a legitimate interest in seeing to it that abortion, like any other medical

procedure, is performed under circumstances that insure maximum safety for

the patient."' And this is true so long as the state statute does not have the

"effect of placing a substantial obstacle in the path of a woman's choice." 2 And

"[u]nnecessary health regulations that have the purpose or effect of presenting

a substantial obstacle to a woman seeking an abortion impose an undue

burden on the right." 3 So the nation's high court has continually recognized a

state's right to regulate abortions to the extent it relates to legitimate interests

of public health. Kentucky is among those states with a series of laws and

regulations designed to ensure these procedures are performed under the same

hygienic standards it imposes on other medical procedures.

      Today's case does not ask us to declare when life begins or to what

extent the state may prevent a woman from terminating a pregnancy. We wish

to be clear at the outset that this case is not about the right to abortion. It does

not involve any constitutional challenges to any state statute or regulation. No

party questions the legitimacy of the law in its current form nor the licensing




       1 See Whole Women's Health v. Hellserstedt,   136 S.Ct. 2292, 2309 (2016)
(quoting Roe v. Wade, 410 U.S. 113, 150 (1973)).
       2 Id. (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833.
877 (1992)).
      3   Casey, 505 U.S. at 878.
                                           6
requirement for abortion clinics in effect since 1999—requirements equally

applicable to ordinary healthcare facilities and ambulatory surgical centers.

      In contrast, this case is about the availability of equitable relief. It is

fairly undisputed that EMW was operating a potentially unsafe medical facility.

The essential question before us is whether evidence in the record supports the

Court of Appeals' issuance of a temporary injunction ordering EMW to stop

performing abortions until it receives an abortion-facility license from the

Cabinet or until the resolution of the underlying litigation on the merits

pending in circuit court. Our review necessarily requires us to preview the

merits of the Cabinet's claim, but we again wish to be doubly clear that our

statements today are in no way to be taken as this Court's definitive position

on whether or not EMW Lexington is legally considered an abortion clinic

operating without proper licensure. In simple terms, we are only reviewing the

prudence of a temporary injunction based on statutory law and prior court

precedent, not whether or not EMW is in fact an abortion clinic.

      As a threshold matter, we agree with the circuit court and the Court of

Appeals that the Cabinet can pursue this claim in the courts. EMW argues that

the Cabinet should have brought its claim first in administrative tribunals

rather than a court of law and that its failure to exhaust the administrative

process bars judicial review. But KRS 216B.040(1)(d) extends to the Cabinet

authority to "enforce, through legal actions on its own motion, the provisions of

this chapter and its orders and decisions issued pursuant to its functions." So

we are thoroughly satisfied this case is well within our jurisdiction for review.




                                          7
   A. Standard of Review.

      This case comes to us by EMW's motion for relief under CR 65.09. That

rule allows "any party adversely affected by an order of the Court of Appeals in

a proceeding under Rule 65.07 or Rule 65.08" to move the Supreme Court to

vacate or modify the Court of Appeals' ruling. But "such a motion will be

entertained only for extraordinary cause shown in the motion." As the movant

in this case, EMW bears the "enormous burden" of proving extraordinary cause

in setting aside the Court of Appeals' ruling. 5

      Appellate review of the issuance of a temporary injunction is examined

for an abuse of discretion. 6 So the injunction will not be dissolved unless we

conclude that the decision below was "arbitrary, unreasonable, unfair, or

unsupported by sound legal principles." 7 Indeed unless the issuing court has

abused its discretion, this Court is powerless to set aside a temporary

injunction. 8

      An abuse of discretion is recognized by this Court as an "extraordinary

cause" worthy of review under CR 65.09. 9 And to be sure, even an inquiry into

whether the lower court abused its discretion has been considered worthy of

substantive review, even if we ultimately determine no such abuse took place.“ )

                                                                                         Sointhase,wgr EMWthaexordinycustfo


      4 CR 65.09. See also National Collegiate Athletic Ass'n v. Lasege, 53 S.W.3d 77,
84 (Ky. 2001).
      5   Courier-Journal, Inc. v. Lawson, 307 S.W.3d 617, 620 (Ky. 2010).
      6    See Maupin v. Stansbury, 575 S.W.2d 695, 698 (Ky. App.1978).
      7   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
      8   Maupin, 575 S.W.2d at 697.
      9   See Lasege, 53 S.W.3d at 84.
      10   See Gharad v. St. Claire Medical Center, Inc., 443 S.W.3d 609 (Ky. 2014).
                                             8
review this case, and we will conduct the ensuing analysis to determine

whether the Court of Appeals abused its discretion in both reversing the circuit

court's denial of temporary injunctive relief and issuing its own injunction.

      Under Kentucky law, a court may issue a temporary injunction if the

movant's "rights are being or will be violated by an adverse party and the

rnovant will suffer immediate and irreparable injury, loss, or damage pending a

final judgment in the action, or the acts of the adverse party will tend to render

such final judgment ineffectual." 11 We endorsed the approach taken in Maupin

v. Stansbury to test the appropriateness of injunctive relief by satisfying three

essential elements: (1) that the moving party can show an irreparable injury;

(2) that the issuance of a temporary injunction is not inequitable; and (3) that

the moving party has a substantial possibility of prevailing on the merits. 12

      So we will now review this case for abuse of discretion using each of the

Maupin factors. We choose to begin our analysis with the third factor.

   B. There is a Substantial Question on the Merits.

      The third Maupin factor prohibits a temporary injunction absent a

finding that a substantial question on the merits exists. In Norsworthy v.

Kentucky Board of Med. Licensure, we held that a party seeking a temporary

injunction must show a substantial question exists that "tends to create a

substantial possibility that the Appellant will ultimately prevail on the

merits." 13 Although we cannot fully address the merits of the present case, this

Maupin factor requires us to handicap the Cabinet's chances of prevailing. And


      11   CR 65.04.
      12   See, e.g., Maupin, 575 S.W.2d at 699.
      13   330 S.W.3d 58, 63 (Ky. 2009) (emphasis added).
                                            9
after a comprehensive review of Kentucky statutory law and precedent, we are

confident there is enough substance to the Cabinet's underlying claim

reasonably to foresee its success on the merits.

      The circuit court relied heavily on this Maupin factor and concluded that

EMW has a "strong argument that it is exempt from licensing pursuant to the

private office provision." The circuit court's conclusion here necessarily

discounts the Cabinet's likelihood of success on the merits. The circuit court

supported this conclusion by observing that the types of abortion procedures

performed at EMW and the equipment on hand were not characteristic of

licensed abortion facilities. The trial court also noted that the clinic conformed

with "the most important regulations of a licensed abortion facility" anyway.

      The Court of Appeals justified its reversal of the circuit court's ruling by

concluding that the trial judge misapplied the law on this point. And indeed a

ruling unsupported by sound legal principles is a valid reason for finding an

abuse of discretion in a lower court. The appellate panel then found that under

its understanding of the private-physician exemption to the licensing

requirement EMW's status was highly doubtful, supporting the displacement of

the circuit court's original ruling. We will thoroughly review all of those relevant

provisions again today.

   1. Chapter 216B Licensure Requirements.
      KRS Chapter 216B details requirements for the licensure and regulation

of health facilities and services in the Commonwealth. The licensure

requirement of health facilities and health services is "a means to insure that

the citizens of this Commonwealth will have safe, adequate, and efficient



                                         10
medical care." 14 The statute goes on to declare that "no person shall operate

any health facility in this Commonwealth without first obtaining a license

issued by the cabinet, which license shall specify the kind or kinds of health

services the facility is authorized to provide." 15 A "health facility" is robustly,

but not definitively, defined as follows:

      "Health facility" means any institution, place, building, agency, or
      portion thereof, public or private, whether organized for profit or
      not, used operated, or designed to provide medical diagnosis,
      treatment, nursing, rehabilitative, or preventative care and
      includes alcohol abuse, drug abuse, and mental health services.
      This shall include but shall not be limited to health facilities and
      health services commonly referred to as hospitals, psychiatric
      hospitals, physical rehabilitation, hospitals, chemical dependency
      programs, tuberculosis hospitals, skilled nursing facilities, nursing
      facilities, nursing homes, personal care homes, intermediate care
      facilities, family care homes, primary care centers, rural health
      clinics, outpatient clinics, ambulatory care facilities, ambulatory
      surgical centers, emergency care centers, emergency care centers
      and services, ambulance providers, hospices, community centers
      for mental health or individuals with an intellectual disability,
      home health agencies, kidney disease treatment centers and
      freestanding hemodialysis units, facilities and services owned and
      operated by health maintenance organizations directly providing
      health services subject to certificate of need, and others providing
      similarly organized services regardless of nomenclature. 16

      Although that definition includes an extensive array of medical services,

abortion services are not listed there. That is because abortion facilities are

dealt with separately in the statutory framework. For KRS 216B purposes, an

"abortion facility" is defined as "any place in which an abortion is performed.""

An abortion facility, like generic health facilities, requires appropriate licensure




      14   KRS 216B.010.
      15   KRS 216B.105(1).
      16   KRS 216B.015(13).
      17   KRS 2168.015(1).
                                            11
from the Cabinet. 18 But unlike generic health facilities, abortion facilities must

also have written agreements between the facility and both acute-care hospitals

and ambulance services. 19

      The statute does not explicitly define "abortion" for purposes of licensure,

but the definition provided in other abortion-regulation statutes reflects other

cross-references in the Kentucky statutory scheme and is consistent with our

case law understanding of the term. There, "abortion" is defined as "the use of

any means whatsoever to terminate the pregnancy of a woman known to be

pregnant with intent to cause fetal death." One noticeable aspect of this

definition is that it does not create different classes of abortions. It does not

differentiate among the types of procedures performed to achieve the ultimate

result of terminating a pregnancy. Indeed, the statute makes no distinction

whether there was general anesthesia used, local anesthesia used, or no

anesthesia used at all. Our operative definition of abortion under Kentucky law

sees no difference between medical abortions and surgical abortions.

      This is exemplified by the use of "any means necessary" to describe the

method of carrying out the procedure. It is clear that our law treats abortion as

its own class of treatment, making no distinction between the use of

pharmaceuticals and surgical procedure. So we are constrained to agree with

the Court of Appeals that the circuit court erroneously considered the nature of



        18 KRS 216B.0431. See also KRS 216.990(1) ("Any person who, in willful
violation of this chapter, operates a health facility or abortion facility without first
obtaining a license...shall be fined not less than five hundred dollars ($500) nor more
than then thousand dollars ($10,000) for each violation."); KRS 216B.042(1)(c) ("The
Cabinet shall...Establish licensure standards and procedures to ensure safe,
adequate, and efficient abortion facilities...").
       19   KRS 216B.0435.
                                            12
the predominant procedures at EMW and its use of only mild anesthesia as

relevant factors. There is nothing about the degree of difficulty of the abortion

procedures performed at EMW that can save the clinic from being labeled an

abortion facility. The fact that even one abortion is performed there is enough

under our statute for the abortion-facility label to apply. Only activity other

than abortions can aid EMW in evading the licensure requirements necessary

for abortions.

       The definition of an abortion facility in Chapter 216B is remarkably

broad and all-encompassing. EMW Lexington admittedly performs abortions

and is not licensed as an abortion facility. The statute declares that any place

that an abortion is performed is an abortion facility and such facilities must be

licensed. So absent EMW's classification as a facility exempt from licensure, we

must start our analysis with the presumption that EMW is in fact an abortion

facility.

    2. The Private Physician Office Exemption.

       EMW claims to rely on one such exemption. In the same provision

outlining the basic licensure requirement for Kentucky healthcare facilities,

Chapter 216B also declares that "Nothing in this chapter shall be construed to

authorize the licensure, supervision, regulation, or control in any manner

of...Private offices and clinics of physicians, dentists, and other practitioners of

the healing arts..." 20 The statute fails to define this classification of medical

facilities. But there are some key inferences that can be drawn from the text.

First is that use of "nothing in this chapter" signifies that the exemption applies



       20   KRS 216B.020(2)(a) (emphasis added).
                                           13
equally to both regular healthcare facilities and abortion facilities—meaning

that this private-office exemption contains some key quality distinct from either

definition that is comprehensively defined under state law. So there must be

some attribute that makes this class of facility different from the two other

highly regulated categories. And we know that simple private ownership does

not suffice. The definition of "health facilities" under Kentucky law

encompasses facilities either "public or private." 21

      So what then is a private physician's office or clinic? What makes these

offices different? That is the most critical issue in this case. Absent proof that

EMW falls within this exemption, the clinic is logically labeled an abortion

facility under KRS 216B.015(1). We have never addressed an issue seeking an

interpretation of this licensure exemption. But we find three published

opinions from the Court of Appeals that weighed-in on this matter. And most of

them involved underlying facts unrelated to the highly charged abortion issue

we face now. So we will review each prior holding.

      But before doing that, we wish to be clear that we are not making a rule

for the private-physician office exemption today. It is only fair to the parties to

hold them to the state of the law—or a reasonable interpretation of current

law—at the time this matter commenced. It is indeed possible that when this

case is addressed on the merits it may be necessary to find definitively the

meaning of this exemption under Kentucky law, and our rule or analysis may

vary from the Court of Appeals' test that exists today. But in handicapping the

Cabinet's chances of prevailing on the merits solely for purposes of deciding to



      21   KRS 216B.015(13).
                                         14
issue a temporary injunction, we will not engage in creating our own rule to

bind the parties. With that notion in place, we will consider the Court of

Appeals' prior holdings on this issue.

       The Court of Appeals first addressed this issue in Cabinet for Human

Resources v. Women's Health Services, Inc. 22, a case whose facts draw

noticeable parallels to today's issue. There, the Cabinet also sought injunctive

relief against Women's Health Services for operating an allegedly unlicensed

ambulatory surgical center that performed abortions. The facility performed

abortions without general anesthesia and had the requisite Certificate of Need

prior to a change of location. The trial court dismissed the complaint under the

theory that the clinic fit the private-physician-office exemption.

       The Court of Appeals reversed, holding that there was a genuine issue of

material fact as to whether Women's Health Services was a private physician's

office or an ambulatory surgical center. This analysis did not invoke the

"abortion facility" definition from Chapter 216B but instead focused on the

ambulatory-surgical center classification, with licensure equally required as a

"health facility." The panel reached its conclusion by inquiring into the primary

purpose of the facility. 23 Because there was ample evidence in the record

indicating that the primary activity of the clinic was consistent with that of an

ambulatory surgical center—which required licensure—the panel determined

that circuit court improperly dismissed the Cabinet's complaint.




      22   878 S.W.2d 806 (Ky. App. 1994).
      23 Id. at 809 ("...the record is replete with testimony that proves that Health

Services was established, equipped, and operated primarily for surgical treatment.")
(emphasis in original).
                                             15
      The Court of Appeals next addressed this exemption in Gilbert v. Cabinet

for Health and Family Services. 24 There, the Court of Appeals affirmed a circuit

court ruling that a physician-owned corporation offering MRI services did not

qualify for the private-office exemption from state licensure laws. The panel

reaffirmed that the party seeking the exemption bears the burden of proof that

his clinic is exempt from Chapter 2 16B; it is not the Cabinet's duty

affirmatively to prove the clinic is not exempt. 25 And the analysis began by

holding that private ownership is not a dispositive factor in attaining this

exempted status—to do so allows any physician in the Commonwealth to

"ignore Chapter 2 16B altogether as long as he owned the building containing

the health facility or where the health services are provided." 26

      The analysis appeared to parallel that in Women's Health Services with

respect to the search for Dr. Gilbert's primary purpose. The panel held that the

evidence proffered "had every appearance that they were something other than

the private offices or clinics of a physician—specifically, they had all the

hallmarks of a diagnostic testing facility." 27 Indeed, the appellate court believed

that "availability of the private office exemption in this case, and in any case,

depends on the kind of activity that actually takes place at the office for which

the exemption is sought." 28 So Gilbert reaffirmed the importance of the nature




      24   291 S.W.2d 712 (Ky. App. 2008).
      25   Id. at 717.   •
      26   Id.
      27   Id. at 719.
      28 Id. at 717.

                                             16
of the activity conducted at the office in question as a crucial consideration in

determining the availability of the exemption.

      But as part of that analysis into a clinic's activity, the Gilbert court felt

that the nature of the office's business activity was an important part of that

evaluation. The panel held that'while the evidence presented "does not describe

a private office or clinic of a physician...It does, however, describe a facility

which performs diagnostic testing on patients, who, but for their referral to

these MRI testing facilities by their own treating physicians, would have no

connection to [ [Dr. Gilbert's] medical practice." 29 The panel therefore suggests

that a private physician's office is not one whose business is derived primarily

from outside referrals from other doctors. Instead, organic referrals through the

physician-owner's own practice are more characteristic of the office

contemplated by the exemption. The panel seemingly focused on the fact that

outside patients presented to Dr. Gilbert's clinic solely for a specific service on

referral from another office—not for treatment from Dr. Gilbert as a primary

physician.

      The Gilbert analysis was refined in the Court of Appeals' final ruling on

this issue in Fleming County Hospital Dist. v. Fleming Regional Imaging, PLLC. 3°

There, the Gilbert test for a private-physician office was summarized into three

factors. The facility may or may not be exempt, depending on: (1) the

ownership of the facility; (2) the activity that takes place in the facility; and (3)

the source of patient referrals to the facility. 31 The Fleming County Hospital


      29   Id. at 718.
      30   354 S.W.3d 149 (Ky. App. 2011).
      31   Id. at 157.
                                             17
panel also reaffirmed the Gilbert panel's position on referrals and their

relevance to qualification for the exemption. In ruling that the exemption

applies in this case, the panel found that the majority of patients presenting to

this clinic were referred there by one of its physician-owners and that those

physicians would be present and performing those services for patients. 32

      So in light of these Court of Appeals opinions, we are comfortable in

determining that the present state of the law in defining the private-physician-

office exemption is essentially an inquiry into the primary purpose of the clinic

as first articulated in Women's Health Services. And to discover that purpose,

reviewing courts should consider the three factors supported by both Gilbert

and Fleming County Hospital: the clinic's ownership, the type of activity

actually conducted, and the nature of the clinic's business. So we will now turn

to EMW and attempt to evaluate its status under those factors.

   3. Applicability of the Exemption to EMW.

      In consideration of the evidence in the record, there is ample reason to

believe that EMW has failed to establish its likelihood of proving its status as

an exempted facility. In turn, we think there is a substantial possibility the

Cabinet may succeed in proving the clinic is an unlicensed abortion facility.

      Like MRI services in Gilbert, EMW almost exclusively engages in conduct

highly regulated under state law—the precise type of activity Chapter 216B

contemplates in requiring licensure. It is an unchallenged fact in this case that

EMW Lexington performs only abortions and related procedures. Since the

death of Dr. Marshall's partner in 2013, EMW has no record of providing the



      32   Id.
                                        18
other forms of gynecological care it claims to offer. We do not think it would be

unreasonable for a reviewing court of law to conclude definitively that EMW

Lexington has "all the hallmarks" of an abortion facility given the exclusive

nature of those services performed in the clinic.

      Likewise, the nature of referrals to the clinic supports that inference. At

the evidentiary hearing, Dr. Marshall indicated that most women turn to EMW

through internet searches or word-of-mouth referrals from former patients. We

think it is fair under the current state of the record for a court to find that

EMW is a standalone business, independent of Dr. Marshall's—or any other

EMW physician's—own medical practice. In fact, we are unsure that Dr.

Marshall has any medical practice apart from abortions. The record paints a

clear picture that EMW's business is not derivative of any organic source of

medical services; it appears the majority of clinic patients are new patients

previously untreated by any EMW physicians seeking one particular type of

service and that service alone.

      Ultimately, the Cabinet is likely to succeed on the merits. EMW has failed

to demonstrate why it should be exempt from licensure as an abortion facility.

An abortion facility is anywhere an abortion is performed, regardless of what

type of abortion is offered or the relatively light anesthesia necessary to

conduct the procedure. EMW exists solely to perform abortions and offers little

to no proof it does anything else other than performing that service in

potentially substandard conditions, proving precisely why the Commonwealth

requires these facilities to be licensed in the first place. So we do not think the

Court of Appeals abused its discretion in finding the Cabinet has established a

substantial question.
                                         19
   C. An Irreparable Injury Exists.

       The Maupin test instructs courts to determine whether the moving party

demonstrated an irreparable injury. 33 The Maupin court further elaborated,

suggesting that a substantial claim to a personal right must be abrogated, and

urgent need for relief must be demonstrated." 34 Placing this sense of urgency in

perspective, "an injunction will not be granted on the ground merely of an

anticipated danger or an apprehension of it, but there must be a reasonable

probability that injury will be done if no injunction is granted." 35 "The clearest

example of irreparable injury is where it appears that the final judgment would

be rendered completely meaningless should the probable harm alleged occur

prior to trial." 36

       In Boone Creek Properties, LLC v. Lexington-Fayette Urban County Board

of Adjustment, we tweaked the irreparable-injury analysis for government

bodies seeking to enforce the law duly passed by the legislature. 37 In cases

where a government entity seeks an injunction to enforce its police powers,

irreparable harm is presumed to exist. 38 This is based on the "self-evident

notion that if a governmental unit enacts a law...and the government cannot

promptly compel compliance by enjoining an ongoing violation, the power and

dignity of that governmental body is diminished." 39 So the irreparable harm in



       33     Maupin, 575 S.W.3d at 698.
       34     Id.
       35 Id. (quoting Hamlin v. Durham, 32 S.W.2d 413, 414 (Ky. 1930)).
       36 Id.


       37 .   442 S.W.3d 36 (Ky. 2014).
       38     Id. at 40.
       39     Id.
                                           20
these cases is the "genuine but intangible harm relating to the power and right"

of a governing body to enforce the laws the legislature promulgates. 4°

       Boone Creek Properties makes clear at the outset that governmental

bodies seeking a temporary injunction are entitled to a rebuttable presumption

of irreparable injury. But while the opinion so clearly set forth the justification

for this rule, it left the precise nature of how an opposing party may rebut that

presumption to future courts to flesh out ad hoc.

       The circuit court in its order denying the Cabinet's motion failed to

address this aspect of the Maupin analysis altogether—perhaps because it was

well aware of the Boone Creek Properties presumption, but more likely because

it found the other factors dispositive in denying the Cabinet's request. But the

Court of Appeals did discuss the irreparable-injury requirement and concluded

that EMW failed to rebut the government's presumption of injury because it

offered no proof whatsoever. We affirm that ruling today under a slightly

different legal theory.

      But first, we, of course, must determine that the Cabinet is entitled to

enjoy this presumption. We are comfortable assuming an irreparable injury to

the Cabinet here because it is a governmental agency seeking to enforce the

Commonwealth's health-licensure laws. The Cabinet is entrusted by the

legislature to enforce the provisions contained in KRS 216B. Certain healthcare

operations require licenses to operate legally in the Commonwealth. Abortion

facilities are one such example of services requiring a state license. The Cabinet

believes EMW Lexington is an abortion clinic operating without a license and



      4° Id.

                                        21
seeks to enforce that state requirement by enjoining them from operation until

such licensure is procured. So we think it is clear that the Cabinet is entitled to

the preliminary presumption of irreparable injury so methodically articulated

in Boone Creek Properties.

      On appeal to this Court, EMW makes two points in attempting to rebut

this presumption. First is the fact that EMW's status as an exempted facility

was recognized by the Cabinet in 2006, only showing a statistical decrease in

non-abortion gynecological services provided in the ten-year period since. And

second, EMW suggests that the nature of abortions offered by EMW

Lexington—mostly either medical abortions or minor surgical abortions

performed with only topical anesthesia—diminishes the risk of irreparable

injury. Essentially, this second position suggests that the abortion procedures

taking place in the clinic are safe enough and expose the patient to minimal

danger of physical harm.

      We agree with the Court of Appeals' conclusion that EMW has failed to

rebut the Cabinet's presumed injury, but we disagree with the panel that the

clinic failed to make an attempt. EMW proffered evidence to consider—albeit

proof ultimately irrelevant to the type of harm contemplated by our Boone

Creek Properties rule. Even if the risk of physical harm to patients receiving

abortions at the clinic is relatively low, as EMW claims, that stakes no position

on the Cabinet's sovereign authority to seek compliance with what it perceives

as an affront to Kentucky statutory law. And likewise, a prior Cabinet's decade-

old determination is equally irrelevant to overcome this presumption. Cabinet

administration has changed twice since that last inspection ten years ago. And

it is undisputed that the services conducted at EMW, as well as the clinic's
                                        22
organization, has changed during that period as well. In the years following the

last Cabinet inspection, Dr. Eubanks died and the clinic pivoted to an

abortion-centric business model. We see no reason why a Cabinet

determination from ten years ago impacts its ability to enforce what it perceives

to be a legal violation today—particularly when the activity in question in the

current dispute almost solely involves conduct occurring in the time after that

2006 inspection.

      So we are satisfied that the Cabinet's presumption of irreparable injury

remains intact. We reaffirm the applicability of our Boone Creek Properties

holding, and we can say conclusively that EMW failed to overcome that

presumption here. So we affirm the Court of Appeals' ruling on this factor.

   D. The Equities Do Not Weigh Against Issuing the Injunction.

      Finally, we must examine equitable considerations, particularly whether

the public interest would be harmed by issuing the injunction, or if its effects

would merely be to maintain the status quo. 41 Indeed, "in any temporary

injunctive relief situation the relative benefits and detriments should be

weighed."42 And further, injunctive relief is improper if it unduly harms others

or disserves the public. 43 So essentially, weighing the equities of this case

requires us to go beyond the actual underlying legal issue in this case—that is,

whether EMW Lexington is an unlicensed abortion facility under Kentucky

law—to examine the impact of today's decision of EMW and its patients.




      41   Maupin, 575 S.W.2d at 698.
      42   Id.
      43   See Price v. Paintsville Tourism Comm'n, 261 S.W.3d 482, 484 (Ky. 2008).
                                            23
       The circuit court determined that the equities weighed against issuing

the injunction. The circuit court said that EMW Lexington, as one of only three

abortion providers in the Commonwealth, primarily services eastern Kentucky

and that closing the facility would have a "severe, adverse impact on women in

the Eastern part of the state." And substandard levels of cleanliness expected

of facilities where minor surgical procedures occur did not displace the

"adverse impact" on women because "the Court cannot imagine that Dr.

Marshall would not immediately seek to remedy th[ose] concerns."

      The Court of Appeals reached an opposite conclusion. The panel held

that there was no evidence in the record of any demographic breakdown of

women seeking abortions at EMW Lexington. So the circuit court's conclusion

that the injunction would potentially harm the women of eastern Kentucky

lacked reliable proof. And with the general purpose of state licensing

requirements designed to ensure that abortions occur in a safe and hygienic

environment, the panel determined that allowing EMW to continue providing

abortion services in the conditions detailed in the record presents a

"substantial risk of harm" to the clinic's patients.

      This Maupin factor requires us to step back and look to the implications

of our decision whether to allow the injunction to stand. It is clear the dilemma

facing us today is the concern for public health and safety balanced against a

Kentucky woman's access to an abortion. But we must carefully avoid the

temptation of speculation and reach our conclusion solely on review of facts

contained in the record before us. And with that in mind, we cannot say the

Court of Appeals abused its discretion in ruling that the equities were not

weighted against enjoining EMW from continuing to perform abortions.
                                    24
         The record indicates that 3,187 abortions were performed in Kentucky in

2015. Of that number, 3 were performed at Norton Hospital in Louisville, 411

were performed at EMW Lexington, and 2,773 were performed at EMW

Louisville. Under the status quo as it existed in 2015, approximately 87

percent of Kentucky abortions were performed by EMW's sister clinic in

Louisville. So it stands to reason that an overwhelming majority of women

seeking an abortion in Kentucky will not be deterred by this decision either

way.

         With that said, we do not wish to disparage the 13 percent of women who

did seek EMW's abortion services in Lexington. The reality is that if a

temporary injunction is issued, EMW LeXington will not be an option until the

underlying litigation in this case concludes. But the type and degree of the

burden imposed is not clear in the record. We have no doubt that, as the

circuit court and EMW contend, the clinic in fact services some clientele from

eastern Kentucky—we would be surprised if it did not. We simply do not know

the level to which it does. So in a sense we agree with the circuit court and

EMW that issuing an injunction would impact Kentucky women, and they

would have to seek abortion-related services either in Louisville or outside the

state.

         But this admitted risk of injury ultimately turns to speculation, and we

cannot say it outweighs the very real and evident unsanitary conditions found

to exist at EMW Lexington, the facts of which are undisputed.

         Despite the confessed difficulties of this analysis, we cannot say the

Court of Appeals abused its discretion by holding that the equities did not

weigh against issuing the injunction.
                                          25
                              III.     CONCLUSION.

      For the foregoing reasons we DENY EMW Women's Clinic of Lexington's

Motion for Interlocutory Relief and AFFIRM the Court of Appeals' decision

vacating the circuit court's order and issuing a temporary injunction in the

Cabinet's favor.



      IT IS SO ORDERED.

All sitting. All concur.


      ENTERED: August 25, 2016.



                                                JUSTICE JOHN D. MINTON, 9R.




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