FRANKFORT — The Kentucky Court of Appeals has rejected efforts by the office of the state Attorney General to use a Franklin County grand jury subpoena to get employment records in a case that appears to involve two University of Louisville physicians who performed abortions at EMW Women’s Surgical Center and trained residents at the clinic.
Because the case is sealed, the appeals court decision does not identify the parties by name, using pseudonyms Jane Doe 1 and 2 and the employer, Roe, as those seeking to quash the subpoena.
But the details closely track a dispute that arose in 2022 when Republican lawmakers sought an investigation of whether the public salaries of physicians at U of L overlapped with their work at EMW, which paid them separately.
Sources with knowledge of the case told The Lantern the appeals decision involved the attorney general’s efforts to obtain the physicians’ employment records including personnel files, job descriptions and payroll records from EMW.
The appeals court, in an order issued Friday, rejected those efforts as a “fishing expedition,” and said further that the subpoena filed by former Attorney General Daniel Cameron is outside the scope of the Franklin County grand jury because the information and records the attorney general sought are from another county.
The matter should be left to prosecutors in the county where the records and activities occurred, the order said.
“While we do not wish to overuse the hackneyed phrase of a ‘fishing expedition,’ we reiterate that the (attorney general) was fishing in the wrong pond,” the order said.
The appeals court upheld the decision of Franklin Circuit Judge Phillip Shepherd to quash the subpoena, but ordered the case to remain sealed pending his further review.
Since leaving office at the beginning of this year Cameron has been working as chief executive of 1792 Exchange, a nonprofit that says it aims to “steer public companies back to neutral on divisive, idealogical issues.” He did not respond to requests for comment about the case that Kentucky Lantern sent to that organization on Friday and in a phone message.
Kevin Grout, the spokesman for Attorney General Russell Coleman, who is now handling the case, said “We have received the opinion. We are reviewing it to decide next steps.” Grout declined to respond to questions seeking details about the case.
William Brammell Jr., identified in the opinion as an attorney representing Jane Doe 1, said, “We appreciate and agree with the court’s thoughtful opinion.”
But because the case remains under seal, Brammell said he could make no further comment. Other lawyers representing parties in the case did not respond to requests for comment.
Abortions largely ended in Kentucky after the June 2022 Supreme Court ruling overturning the landmark, 1973 Roe v. Wade decision returned control to the states. Kentucky already had laws on the books banning all or most abortions except in life-threatening circumstances.
GOP lawmakers called for investigation
But some Republican lawmakers had questioned the role of U of L physicians at EMW, citing U of L’s public funding, and called for an investigation.
“If university funds are used for abortion,” said Rep. Jason Nemes (R-Louisville) at a legislative hearing in 2022, “the taxpayers ought to know, and the legislature should take that into account when we’re talking about funding the university and other things.”
Nemes and other lawmakers said further investigation was warranted.
Cameron filed a grand jury subpoena in June 2023 seeking payroll and personnel information of the two Jane Does, the appeals opinion said. At the time, Cameron, a Republican, was running for governor against incumbent Gov. Andy Beshear, a Democrat, who won a second term.
Through the subpoena, the attorney general “sought to compare the employees’ records for evidence that unspecified and indirect state funds may have been related to some malfeasance connected with their work,” the opinion said.
In July 2023, the Jane Does and Roe asked the Franklin circuit judge to quash the subpoena and in September, the judge did so, the appeals opinion said
But the judge also unsealed a portion of the record, it said.
The attorney general appealed the decision and asked that the case remain sealed, which the appeals court agreed to do, it said.
Friday’s 23-page opinion is the first public record in the case filed more than a year ago, and said it tries to strike a balance between “the necessary secrecy of grand jury proceedings and the right of the public to know what its government is doing.
“We conclude that the public issuance of this opinion with appropriate pseudonyms for most participants will achieve the proper balance,” it said.
But in its description of the case, the appeals court leaves clues that indicate the conflict pits the Attorney General’s Office against EMW and its doctors. For instance, it states that the doctors have two employers, and the second employer gets a small percentage of its funding from the state.
U of L gets some, though not the majority, of its funding from the state. EMW, a private clinic, received no public funds.
The attorney general had argued it should have access to the information it sought through subpoena because state funds may be involved.
The appeals court rejected that argument, saying of the Jane Does, “They are employees, and their employers, not the Commonwealth, are responsible for their paychecks.”
The Appeals court order is written by Judge Kelly Mark Easton with Judges Glenn Acree and Pamela R. Goodwine concurring in the decision.
It vacates the order by Shepherd, the trial judge, to unseal some of the records in the case and sends the case back to him “for further proceedings on the sealing of the record.”
“All of this court’s record, except for this opinion, will remain sealed recognizing the authority of the circuit court to first decide what, if any, further information should be made public,” the order said.
Abortion ban factors into governor’s race
EMW was one of two Louisville clinics that provided abortions in Kentucky until the U.S. Supreme Court struck down Roe v. Wade and a pair of laws passed by the state’s Republican-controlled General Assembly took effect, banning almost all abortions in Kentucky.
The two laws, one the “trigger law” banning abortion and the other, banning abortions after six weeks — before many women realize they are pregnant — took effect after the high court ruling.
They permit abortions only to save the life of or prevent disabling injury to a patient, with no exceptions for rape or incest – which became a heated issue in Cameron’s unsuccessful run last year for governor against Beshear.
Cameron, an anti-abortion Republican who defended the laws in court, was criticized in a Beshear campaign ad by a young woman who had been raped and impregnated at age 12 by her stepfather and said laws Cameron defended would have forced her to bear the child.
Hadley Duvall, an Owensboro native who is now in her early 20s, told the Kentucky Lantern last year that she began sharing her story about the sexual abuse she experienced as a child after the U.S. Supreme Court overturned Roe v. Wade in 2022.
She recently went national with her story through a campaign ad supporting President Joe Biden on the same issue. Biden dropped his bid for re-election July 21 and his vice-president and abortion rights advocate Kamala Harris is now seeking the Democratic nomination for president.
In 2020, the conservative Family Foundation of Kentucky questioned U of L’s arrangement with EMW, suggesting public money might be going to fund abortions services.
They called on Cameron to investigate and a spokeswoman for Cameron said at the time he would consider doing so.
The spokeswoman said Cameron was committed to enforcing the state’s laws, “which prohibit the use of public funds for abortions. We will review any information provided to determine whether a further inquiry is warranted.”
At the time, then-U of L President U of L President Neeli Bendapudi firmly rejected such allegations, saying “we comply, not just in this program, but in every program with all federal and state laws.”
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Written by Deborah Yetter and Tom Loftus. Cross-posted from the Kentucky Lantern.
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