EMW Women's Surgical Center before it closed. (Photo by Deborah Yetter)

Franklin Circuit Judge Phillip Shepherd has scheduled a hearing Sept. 27 on whether to unseal a case that appears to involve efforts by the Kentucky attorney general’s office to subpoena employment records of two University of Louisville physicians who previously provided abortion services at a private clinic in Louisville.

Shepherd’s order Thursday comes a month after the Kentucky Court of Appeals rejected the attorney general’s efforts to obtain the employment records through a grand jury subpoena, calling it a “fishing expedition.”

Kentucky appeals court rejects AG’s efforts to get employment records in abortion case

While the appeals court identified the plaintiffs only by pseudonyms Jane Doe 1 and Jane Doe 2, and the employer as John Roe, the Kentucky Lantern, citing sources with knowledge of the case, reported Aug. 9 that the case involved two U of L physicians, and their part-time employer, EMW Women’s Surgical Center, where the physicians provided abortion care and trained medical residents.

Parties have not commented on the details of the case, which remains sealed.

Abortion services have been largely banned in Kentucky under state law since the U.S. Supreme Court in 2022 overturned the 1973 landmark Roe v. Wade decision which had established abortion as a constitutional right. Kentucky law now permits abortion only to save the life of a patient or prevent disabling injury.

Shepherd’s order Thursday said secrecy prevented the press or public from getting involved in the proceedings because “they had no knowledge of the pendency of the case.”

“Members of the public or press who might have objected to the sealing of the record had no notice or opportunity to be heard … nor was any party who might have objected to the sealing of the record able to participate in the appeal,” he said.

Shepherd has directed that any party, including the press or public, who wants to intervene in the case or be heard over the matter of keeping the record sealed, file a motion with the court by Sept. 20.

“The Kentucky Supreme Court has held that the public and the press have a right to be heard in connection with any decision to close judicial proceedings,” his order said.

The dispute arose last year under former Attorney General Daniel Cameron, an anti-abortion Republican, who sought a subpoena for employment records of Jane Doe 1 and 2. The effort followed a call from some Republican legislators for an investigation into whether the public salaries of the doctors, on the faculty at U of L medical school, overlapped with any payments they received for their work at EMW.

But the clinic and the doctors went to Franklin Circuit Court to quash the subpoenas as improper, initially asking the case be sealed to protect their privacy. Cameron’s office also asked that it be sealed to protect the secrecy of the investigation.

The judge agreed to quash, or reject the subpoenas, but the attorney general appealed the decision and also asked the appeals court to order that the case remain sealed while an appeal was pending.

Shepherd’s order notes that the parties — Jane Does 1 & 2 and the employer — took no position on whether the records should remain sealed at that point.

Meanwhile, Cameron left office? at the end of 2023 and Republican Russell Coleman took over as attorney general in 2024, taking over the case.

On Aug. 9, the appeals court rejected the attorney general’s efforts to obtain the employment records of the two Jane Does with a subpoena, saying it was outside the scope of his office.

It also sent the case back to Shepherd to determine whether the case should now be unsealed, which he will take up at the hearing Sept. 27.