Several laws, such as the 72-hour waiting period, were temporarily blocked. But Planned Parenthood says enough restrictions remain in place to prevent abortion services from resuming
BY: ANNA SPOERRE
Missouri Independent
A Missouri judge on Friday temporarily struck down several laws that Planned Parenthood clinics have said made access to abortion all but impossible across the state.
Among the laws Jackson County Judge Jerri Zhang blocked include a 72-hour waiting period for an abortion and a mandate that physicians performing abortions have admitting privileges at nearby hospitals.
But abortions will not yet restart in the state because licensure requirements remain in place.
Planned Parenthood Great Plains, Planned Parenthood Great Rivers and the ACLU of Missouri in a joint statement Friday evening said the state’s several clinics remain unlicensed.
“As a result of today’s mixed decision,” they wrote. “Missourians continue to be deprived of time-sensitive, essential, and constitutionally protected health care, despite voting in favor of a constitutional right to abortion.”
After more than two years of a near-total abortion ban, Missourians voted to legalize the procedure in November. Planned Parenthood and the ACLU of Missouri immediately sued the state in the hopes of invalidating dozens of abortion regulations they believed were now unconstitutional.
On Friday afternoon, Zhang granted some of Planned Parenthood’s requests and denied others. This means that for the time being at least, some of the state’s strictest “targeted regulation of abortion providers,” or TRAP, laws are not enforceable.
Planned Parenthood clinics in Missouri did not immediately say how soon they may begin offering abortion as a result of the judge’s order.
State officials, including Attorney General Andrew Bailey, agreed Amendment 3 makes null and void the state’s current ban on abortion, which only allows exceptions for medical emergencies.
But during a Dec. 4 hearing, Bailey’s office panned Planned Parenthood’s arguments that current TRAP laws cause irreparable harm and are unnecessary.
The state asked that the case be dismissed, arguing that because abortion is still accessible by mail or by leaving the state, Planned Parenthood didn’t have the standing to ask for an emergency injunction.
In her Friday order, Zhang wrote that, “as plaintiffs argue, they and their patients are suffering serious harm, whereas defendants only stand to lose the ability temporarily to enforce some laws that are likely to be held unconstitutional and which further no valid compelling state interest.”
She went on to temporarily strike down the following TRAP laws as unconstitutional:
- A requirement that physicians providing abortions have admitting privileges at hospitals with obstetric or gynecological care within 30 miles or a 15-minute drive.
- A mandatory 72-hour waiting period between an initial abortion consultation and the abortion procedure.
- The state’s informed consent requirement, which includes access to the state’s informed consent booklet.
- In cases of medication abortions, a requirement that the medication be administered in the presence of the doctor who prescribed it. Planned Parenthood refers to this as a “telemedicine ban,” which prevents doctors from prescribing a medication in-person but allowing the patient to take the medication at home or in the presence of another medical professional.
- A requirement that before administering medication abortion, providers must have a complication plan in place, which includes access to an on-call OB-GYN who is available at any time, in the case of a complication. Zhang wrote that this law was not helpful to those traveling from rural Missouri to an urban Planned Parenthood clinic, for example.
- A law requiring all fetal tissue removed from the uterus during an abortion be sent to a pathologist.
Zhang kept in place the following TRAP laws:
- A requirement that patients must first see a doctor for an in-person appointment to confirm gestational age before prescribing the pills used in medication abortions.
- A law stating that abortions can only be performed by physicians, and not physicians assistants or other advanced practice clinicians.
- A law allowing the Missouri Department of Health and Senior Services to place separate regulations and standards that apply to ambulatory surgical centers on abortion clinics, including size requirements for hallways, room and doors. This law also requires clinics to keep a written plan for managing medical emergencies, including a transfer plan for patients to a nearby hospital. Zhang said she was denying the injunction related to these licensure requirements because the statutes “pertain to the actual licensure of the facilities rather than the rights of individuals seeking reproductive care.”
After the court hearing but before Friday’s decision, a spokeswoman with the Missouri Department of Health and Senior Services said the department continued to view the state’s TRAP laws as constitutional but declined to comment on specific aspects of the lawsuit as the litigation is ongoing.
“Our regulations remain in place,” Sami Jo Freeman, spokeswoman for the department, said on Dec. 11. “We believe those regulations are not overly burdensome and establish necessary safety standards for these procedures. We cannot comment on pending litigation at this time.”
Brian Westbrook, executive director of Coalition Life, said in a statement Friday that his organization will be closely monitoring the licensing process of any abortion clinics in Missouri.
“We are gratified that the court has rightly decided to retain licensing requirements for abortion facilities and doctors who perform abortions,” Westbrook said. “Even while we mourn the loss of protections that are vital to the safety of women and the protection of preborn children.”
On Nov. 5, Missourians narrowly approved Amendment 3, which states, in part, that “the right to reproductive freedom shall not be denied, interfered with, delayed, or otherwise restricted unless the government demonstrates that such action is justifiable by a compelling governmental interest achieved by the least restrictive means.”
The constitutional amendment officially took effect Dec. 6.
Had all the challenged TRAP laws been struck down, Planned Parenthood clinics said they were prepared to immediately begin offering abortions at some of their locations.
“It is unacceptable that tomorrow, just like for the past two weeks, Missourians will have a constitutional right that cannot be realized in their home state,” Emily Wales, president and CEO of Comprehensive Health of Planned Parenthood Great Plains, said in a statement. “We’re relieved the court recognized and enjoined many oppressive laws on the books that serve no purpose except to put abortion out of reach. Unfortunately, a key tool weaponized by anti-abortion politicians — the licensure process — remains in effect, and we are unable to restore care.”
The plaintiffs in a statement said they are evaluating their legal options. A spokesperson for the Missouri Attorney General’s Office did not immediately respond to a request for comment.
Zhang’s order is temporary until a trial litigating the challenged laws takes place. The next case management conference is scheduled for late February in Kansas City.
“What’s Next,” an Amendment 3 accountability group made up organizers and activists who previously called for a constitutional amendment with no restrictions on abortion, said the ruling was far from a win.
“‘Ending the ban’ is window dressing as long as restrictions such as facility license requirements designed to keep clinics closed are in effect and access to care is not a reality for abortion seekers and providers,” they wrote. “This is what we warned about and our fears are unfolding exactly how we predicted.”
