With Missouri Down To One Abortion Provider, Here's The Background On A Complicated Legal Case | KCUR

With Missouri Down To One Abortion Provider, Here's The Background On A Complicated Legal Case

Feb 25, 2019

Missouri has one remaining abortion provider after a federal judge on Friday refused to block the state's law requiring that abortion providers have admitting privileges at a local hospital.

The decision by U.S. District Judge Brian Wimes was the latest development in a case that has bounced around the federal courts for more than two years, after Planned Parenthood challenged the requirement as medically unnecessary.

The case is making its way through the courts at the same time as a similar case in Louisiana has reached the U.S. Supreme Court, and it appears that may where the fate of Missouri’s law will ultimately be decided.

Here’s what the case is about and what it means for abortion access in Missouri.

What is the Missouri law at issue?   

In 1986, Missouri became the first state to require that doctors providing abortion services must have admitting privileges at a hospital “in the community.” The law interprets “in the community” to mean a hospital that’s no more than 15 minutes away.

Supporters of the law say it’s meant to ensure the health and safety of abortion patients. Opponents point out that abortion is one of the safest medical procedures, with a very low complication rate. The law, they say, is medically unnecessary and intended to restrict abortion access.

If the law has been on the books for so long, why is it being challenged now?

Texas enacted a similar requirement in 2013. The Texas law was challenged in a case known as Whole Woman’s Health v. Hellerstedt, which ended up in the U.S. Supreme Court. In 2016, the court ruled that the Texas law (which, like Missouri’s, also required abortion clinics to physically upgrade their facilities to meet the standards of ambulatory surgical centers) was unconstitutional. The court found that the law imposed an “undue burden” on women seeking to exercise their constitutional right to an abortion under Roe v. Wade.

Like Missouri, Texas said the law protected women’s health. Critics said it was intended to shut down abortion clinics by imposing unnecessary, burdensome and costly requirements. After the Texas law was enacted, the number of clinics providing abortions in Texas, a state with a population of 27 million at the time, fell from 41 to 19.

Justice Stephen Breyer, who wrote the opinion for the court’s 5-3 majority, held that the law’s benefits weren’t sufficient to justify the burdens the law imposed on women seeking to exercise their constitutional right to an abortion.

Because Missouri’s law was nearly identical to Texas’ law, Planned Parenthood Great Plains, which operates clinics in Kansas City and Columbia (among other places), and Planned Parenthood of the St. Louis Region, which operates a clinic in St. Louis, sued to block it.

What effect has the law had?

The law forced Planned Parenthood’s facility in Columbia to stop offering abortions in 2015. That’s because, due to hospitals’ unwillingness to get embroiled in the abortion issue, the clinic had been unable to find a hospital that would grant its abortion providers admitting privileges. Although the clinic was able to resume providing abortions after it obtained a court order blocking the law, it was forced to halt them again in October when that order was lifted.

And two weeks ago, the clinic had to temporarily close after someone set fire to the building. The FBI has offered a $10,000 reward for information leading to the arrest and conviction of the perpetrator. The clinic has since reopened and resumed offering reproductive and other health services, but it's still blocked from offering abortions.

As things now stand, Planned Parenthood’s health center in St. Louis is the only abortion provider in Missouri. Planned Parenthood's clinic in Kansas City can't offer abortion services because it, too, has been unable to meet the admitting privileges requirement. 

How has Planned Parenthood’s challenge to the law fared in court?

The case has had a tortured history. In April 2017, Senior U.S. District Judge Howard Sachs issued a preliminary injunction blocking both the admitting privileges and ambulatory surgical center requirements.

“The abortion rights of Missouri women, guaranteed by constitutional rulings, are being denied on a daily basis, in irreparable fashion,” Sachs wrote. “The public interest clearly favors prompt relief.”  

Sachs noted that the Supreme Court in Whole Woman’s Health had found that the hospital affiliation requirement in Texas cured no significant health-related problem. And he cited the court’s finding that tens of thousands of women in Texas would have been forced to travel more than 150 miles to find an open clinic had the affiliation requirement been allowed to stand.

Then-Missouri Attorney General Josh Hawley promptly appealed Sachs’ ruling to the Eighth Circuit Court of Appeals. Hawley said that Missouri had “an obligation to do everything possible to ensure the health and safety of women undergoing medical procedures in state licensed medical facilities.”

In September 2018, a three-judge panel of the Eighth Circuit reversed Sachs’ preliminary injunction. The panel said Sachs had failed to weigh the law’s benefits against its burdens and sent the case back to the trial court for reconsideration. By then, Sachs had stepped aside and the case had been reassigned to Wimes, who a few weeks later declined to block the law.

Wimes ruled that even if he had done so, Planned Parenthood’s Columbia clinic wouldn’t have been able to offer abortion services because the state had refused to renew the clinic’s license after an inspection uncovered instances of moldy and rusty equipment. Wimes, however, said Planned Parenthood could refile its motion to block the law once health officials found the Columbia clinic had come into compliance.

The state eventually reinstated the clinic’s license and Planned Parenthood renewed its motion. On Friday, Wimes once again denied the motion.

Why did Wimes refuse to block the law?

Citing other federal cases, Wimes said  an abortion requirement is considered to be an “undue burden” only if it’s a substantial obstacle to abortion access “in a large fraction of cases.” It’s not clear why he didn’t find that to be the case here; he said only that Planned Parenthood had not demonstrated “a likelihood of success on the merits,” a prerequisite for a preliminary injunction, even if the fraction were as large as Planned Parenthood argued.

And he found that Planned Parenthood had failed to show that the burdens associated with the hospital admitting privileges requirement “outweigh the benefits conferred” by the requirement, at least as applied to the Columbia facility. He didn’t spell out what those benefits are.

He also said Planned Parenthood did not present evidence that it had attempted to find physicians with hospital admitting privileges willing to provide abortions at the Columbia clinic. Nor, he said, did the increased driving distances for women who would have to travel to the only remaining abortion facility in Missouri — Planned Parenthood’s clinic in St. Louis — provide a basis for blocking the law. (Women in many instances would have to drive the distance twice, because Missouri also requires a 72-hour waiting period before they can obtain an abortion.)

What happens next?

Wimes ruled only on Planned Parenthood’s request to block the law and preserve the status quo pending a trial on the merits. But because he found that Planned Parenthood is unlikely to prevail at trial, the organization’s odds of persuading Wimes to reconsider after a full-blown trial appear to be remote.  

For now, Planned Parenthood's best hope may lie with the U.S. Supreme Court. Earlier this month, the court, by a 5-4 vote, blocked a similar requirement in Louisiana. The court offered no reasons for its action, a temporary stay, while it decides whether to hear a challenge on the law’s merits next term.

The Louisiana law had been struck down by a federal judge in Baton Rouge, who found that it was basically identical to the Texas law the Supreme Court struck down in Whole Woman’s Health. But a three-judge panel of the Fifth Circuit Court of Appeals, in a 2-1 decision, reversed that judge’s order, saying the law's benefits outweighed its burdens.

Chief Justice John Roberts cast the deciding fifth vote in issuing the stay, but that doesn’t mean the Supreme Court will block Louisiana’s law after a full review on the merits. For one thing, Roberts was one of the dissenters in Whole Woman’s Health, meaning he would have upheld the Texas law. And Justice Anthony Kennedy, who cast the deciding fifth vote in Whole Woman’s Health, has been replaced by Justice Brett Kavanaugh, who dissented from the Supreme Court’s vote to grant a stay in the Louisiana case.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.