A federal judge has declined to block a Missouri regulation governing medication abortions, although she found that the restriction “has virtually no benefit.”
Ruling in a case brought by the Planned Parenthood affiliates in Kansas City and St. Louis, U.S. District Judge Beth Phillips said the plaintiffs had not shown that the regulation “is a substantial burden to a large fraction of women seeking a medication abortion.”
The regulation, which was adopted by the Missouri Department of Health and Senior Services (DHSS) in October 2017, requires providers of medication abortions to contract with an ob-gyn who has hospital admitting privileges and who agrees to be available 24/7 to treat any complications arising from a medication abortion.
Planned Parenthood’s health clinics in Kansas City and St. Louis have been able to comply with the state’s requirement and enter into agreements with local ob-gyns. But its clinics in Columbia and Springfield have been unable to do so, meaning women seeking a medication abortion in those cities have to travel to Kansas City or St. Louis to undergo the procedure.
And because another Missouri law calls for a 72-hour waiting period for women seeking an abortion, those women have to find overnight accommodations in Kansas City or St. Louis or travel back to those cities a second time – in both cases round trips from Columbia totaling about 500 miles.
Medication abortions, which are typically used in the early stages of pregnancy, involve the administration of two pills. The first, mifepristone, is given in the health clinic and the second, misoprostol, is typically taken by the patient at home 24 to 48 hours later.
The procedure is considered safe. Major complications requiring hospitalization, surgery or a blood transfusion occur in only 0.3 percent of all cases; minor complications occur in about 5 percent of cases.
The heads of the two Planned Parenthood affiliates, Brandon Hill of Planned Parenthood Great Plains and Mary M. Kogut of Planned Parenthood of the St. Louis Region, called Phillips’ ruling “extremely troubling.”
“Even though the Court found that complications from medication abortion are ‘rare,’ and ‘strongly suspect[ed] that this requirement has been imposed specifically because DHSS is aware that it is difficult for abortion providers to comply with it, and simply constitutes a backdoor effort to require admitting privileges in an attempt to avoid (or ignore) Hellerstedt,’ the Court still has declined to stop this senseless regulation,” the two said in a joint statement.
“Hellerstedt” refers to a 2016 U.S. Supreme Court decision striking down two Texas abortion restrictions, both similar to ones in Missouri. The first required abortion providers to have admitting privileges at a nearby hospital. The second required abortion clinics to meet the same physical specifications as ambulatory surgical centers.
After the Supreme Court found that the restrictions imposed an “undue burden” on women seeking an abortion, then-Missouri Gov. Eric Greitens called the Legislature into special session to enact new abortion restrictions. DHSS then adopted an “emergency regulation” requiring providers of medication abortions to adopt so-called complication plans. Those plans had to include the back-up ob-gyn requirement.
The state offered several justifications for the requirement, saying it increased the accuracy of diagnoses; helped the state accurately track complications arising from medication abortions; ensured the availability of a medical professional who could perform a vacuum aspiration – a suction procedure – in the event of an incomplete or failed abortion; and helped minimize referrals to emergency rooms.
Phillips found none of those justifications convincing. But she said she was obliged to weigh the regulation’s benefits against its burdens, and she found the burdens weren’t sufficient to warrant the regulation being blocked.
“It is not enough for the regulation to make it more difficult for women to obtain an abortion; instead it must be a substantial burden on their ability to obtain an abortion,” Phillips wrote.
Phillips’ ruling does not mark the end of the case. Although she denied Planned Parenthood’s request for a preliminary injunction, the case still awaits a trial.
But her ruling does not bode well for Planned Parenthood. In denying the preliminary injunction motion, she was required to find that there was no “substantial likelihood” Planned Parenthood would prevail on the merits.
Planned Parenthood challenged the Arkansas law as medically unnecessary, and a federal judge blocked it from taking effect. But a three-judge panel of the Eighth U.S. Circuit Court of Appeals overturned that decision, saying the lower court had failed to tally the number of women burdened by the statute.
Because Planned Parenthood was unable to find any Arkansas physicians willing to contract with medication abortion providers, Arkansas is now the only state in the country in which medication abortions are no longer available.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies