A Jackson County judge is weighing whether to keep in place two state regulations that Planned Parenthood says are preventing its providers from performing medication abortions in Missouri.
Over the course of several hours Wednesday, attorneys for Planned Parenthood and the Missouri Attorney General’s Office argued before Circuit Judge Jerri Zhang over whether current regulations on abortion medication — the most common kind of abortion — are a necessary safeguard or onerous and unconstitutional.
In November, Missouri voters legalized abortion up to fetal viability. But abortion remains widely inaccessible to most Missourians as a number of related legal cases play out in the courts.
Procedural abortions are again accessible on a limited schedule at Planned Parenthood’s clinics in Kansas City, Columbia and St. Louis. But medication abortions are not available because Planned Parenthood does not have an approved medication abortion complication plan or supplemental insurance required by state regulations.
Planned Parenthood continues to argue that these restrictions fly in the face of the abortion rights amendment, which reads: “The government shall not discriminate against persons providing or obtaining reproductive health care or assisting another person in doing so.”
Peter Donohue, an assistant attorney general involved in the lawsuit, argued Wednesday that “regulation and medicine go together.”
Vanessa Pai-Thompson, an attorney for Planned Parenthood, countered that the complication plan puts the state “squarely between patients and providers” by forcing “medically unnecessary requirements.”
In late March, the Missouri Department of Health and Senior Services rejected Planned Parenthood’s complication plan, stating that it did not meet the requirements of a new emergency rule published the same day by the Missouri Secretary of State’s Office.
That rule requires the complication plan for any facility prescribing abortion medication to more than 10 women a month must:
- Have an on-call OB-GYN who lives within 25 miles of the clinic available at all times for seven days after a patient takes the medication. This physician would be required to treat any complications that arise as a result of the medication unless the standard of care requires someone else to treat them.
- Provide for patients who live further than 25 miles from the clinic the name of the emergency room and a physician “within a reasonable distance of the location where the patient will complete the abortion.”
- Submit the full names of all physicians involved in the local complication plans.
A medication abortion requires two different kinds of pills. The first, mifepristone, causes the embryo or fetus to stop growing and detach from the uterine wall, ending the pregnancy. The second, misoprostol, causes the uterus to expel the pregnancy tissue.
Both medications can also be used to treat miscarriages.
Bleeding and cramping are expected side effects. Hemorrhaging and infection are among rare complications.
Since the medication was approved for use 28 years ago, 32 deaths have been reported associated with mifepristone, according to the FDA. The report evaluates data from 5.9 million women who took mifepristone between 2000 and 2022. Of the three dozen deaths, 11 were the result of sepsis, 20 were homicides and two were suicides.
Wednesday’s hearing included testimony from two OB-GYNS: Dr. Margaret Baum, chief medical officer of Planned Parenthood Great Rivers, and Dr. Ingrid Skop, vice president and director of medical affairs for Charlotte Lozier Institute, an anti-abortion research group.
Baum said a complication plan is not required when she performs vasectomies at the clinic, even though she said the risk of infection is greater for that procedure.
Between April 2018 and August 2023, there were 438 abortion complication reports — including 186 from medication abortions — filed with Missouri’s health department. Details on individual cases were not presented.
In her testimony, Skop suggested the number of complications could be higher. It is difficult to collect accurate data, she claimed, because many women are advised by abortion providers not to tell primary care or emergency room doctors that they had an abortion if seeking further treatment.
Baum said that’s because miscarriage and medication abortion present the same and require the same treatment, so choosing not to disclose an abortion can protect a patient’s privacy. She added that when she administers mifepristone to patients at her clinics in Illinois before sending them home with a dose of misoprostol, she gives them multiple ways to reach a provider if they have concerns that they are bleeding too much or are experiencing any other complications.
Missouri law also requires providers prescribing abortion medication to carry tail insurance, a supplemental plan to medical malpractice insurance that would extend coverage for 21 years following the administration of the medication in case there is a claim of “personal injury to or death of a child who survives such abortion.”
Attorneys for Planned Parenthood have argued in briefings that this 2019 law is also discriminatory because it’s not required for other medical events such as childbirth, which carries much higher risks of injury or death.
Among the state’s witnesses was Melissa Ohden, founder and CEO of the Abortion Survivors Network, based in Kansas City, which connects women who underwent failed abortions and their families with resources. Ohden is also an outspoken opponent of any abortion exceptions.
“The reality is that abortions fail far more frequently than women are told about,” she testified Wednesday, based on anecdotal data she said she’s gathered over years of working with thousands of people through her organization.
If a medication abortion fails, patients can take another dose of medication or undergo an in-clinic abortion, according to Planned Parenthood’s website.
While Pai-Thompson, Planned Parenthood’s attorney, said the restriction is another attempt to subject abortion providers to licensing penalties, Donohue argued it was in place to protect doctors.
A “rural woman” might not know a “big, fancy” medical word like mifepristone, Donohue said. He then gave a hypothetical of a woman accidentally “overdosing” on mifepristone because her local doctor didn’t have access to medical records indicating she was already prescribed mifepristone by Planned Parenthood.
FDA data shows among the nearly 6 million cases of patients taking mifepristone, only one documented death has occurred due to taking too much of the medication.
Donohue said any inability of Planned Parenthood to meet these requirements is “self–imposed.”
Pai-Thompson countered that any restrictions are a big deal if they’re unconstitutional.
Missouri has a long history of imposing “targeted regulation of abortion providers” laws.
These regulations played a large role in reducing the number of abortions in Missouri from more than 5,000 a decade ago to 167 in 2020, according to data from the Missouri Department of Health and Senior Services.
As the medication abortion regulations hearing played out in downtown Kansas City on Wednesday, the Missouri Court of Appeals was hearing arguments down the street in the Missouri attorney general’s attempt to overturn a preliminary injunction issued by Zhang allowing clinics across the state to resume procedural abortions for the first time in years.
The attorney general’s office is asking the appeals court to reverse that decision and again make procedural abortions inaccessible in Missouri.
The appeal was initially filed by Bailey, who recently resigned to become co-deputy director of the FBI. Catherine Hanaway, a former lawmaker and U.S. attorney, has taken his place.
Gillian Wilcox, legal director of the ACLU of Missouri, said it’s yet to be seen if the change in leadership will change the office’s approach to the several abortion-related cases it’s involved in.
“At this point we expect the state to do everything in their power to have all of the restrictions on abortion care stay in place,” Wilcox said, “despite the amendment that the voters passed.”
This story was originally published by the Missouri Independent.
