A federal appeals court ruling in Missouri earlier this week significantly escalated the legal battle over abortion rights, reduced the number of clinics performing surgical abortions in the state to one – in St. Louis – and may be the decision that puts abortion rights back in front of the U.S. Supreme Court, where Brett Kavanaugh may or may not be among the sitting justices.
The latest development in ongoing litigation over the state’s requirements for surgical abortions came on Sept. 10, when the 8th U.S. Circuit Court of Appeals in St. Louis allowed two restrictions to take effect.
The decision was a surprise to some observers because two years ago, the U.S. Supreme Court found that nearly identical abortion restrictions in Texas were unconstitutional. One of them required abortion clinics to meet the layout specifications of ambulatory surgery centers; the other required abortion providers to have admitting privileges at nearby hospitals.
Instead of blocking Missouri’s restrictions, however, the 8th Circuit Court of Appeals sent the case back to the lower court to consider not just the costs of the restrictions but also their benefits. How much longer it will take for the lower court to make that assessment remains unclear.
Understanding the roller coaster of high-stakes legal developments in Missouri requires two separate timelines: one highlighting key developments pertaining to the case involving surgical abortions, the other highlighting key developments in a separate case challenging another set of requirements for medication abortions.
Surgical abortion litigation
1986: The Missouri General Assembly passes a law making it a misdemeanor for physicians to perform abortions unless they have admitting privileges at a hospital within 30 miles.
2007: The General Assembly amends the definition of “ambulatory surgery center” (ASC) to include most facilities that perform abortions. The Missouri Department of Health and Senior Services, which oversees abortion facilities, subsequently subjects abortion clinics to the same layout standards, such as wide hallways, as ASCs.
Planned Parenthood of Kansas and Mid-Missouri (now known as Comprehensive Health of Planned Parenthood Great Plains) sues over the new requirements.
2010: Comprehensive Health and the state of Missouri settle the lawsuit. The state agrees to modify the requirements for Planned Parenthood’s facility in Columbia (which include having four recliners with at least three feet of space on both sides) and waives the requirements entirely for its facility in Kansas City.
June 2016: In the Texas case known as Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court rules that state’s ASC and admitting-privilege requirements are unconstitutional because they create an “undue burden” for women seeking abortions.
November 2016: Following the Supreme Court’s decision, Comprehensive Health and Reproductive Health Services of Planned Parenthood of St. Louis Region challenge Missouri’s ASC and admitting-privilege requirements in federal court.
April 2017: Senior U.S. District Judge Howard Sachs issues a preliminary injunction blocking the requirements from taking effect. Sachs says he is bound by the Supreme Court’s decision. He writes that “(t)he abortion rights of Missouri women, guaranteed by constitutional rulings, are being denied on a daily basis, in irreparable fashion.”
May 2017: Missouri Attorney General Josh Hawley appeals Sachs’ ruling to the 8th U.S. Circuit Court of Appeals.
September 2017: The 8th U.S. Circuit Court of Appeals lifts Sachs’ injunction.
October 2017: Five of the nine judges on the 8th U.S. Circuit Court of Appeals decide to leave the injunction in place after all. The one-sentence order does not explain the court’s change of heart.
September 10, 2018: A three-judge panel of the 8th U.S. Circuit Court of Appeals rules that Sachs was premature in blocking the restrictions.
Authored by Judge Bobby E. Shepherd, a George W. Bush appointee, the 14-page decision finds that there wasn’t enough information in the record to determine how Missouri’s waiver provision operates. And, Shepherd writes, Sachs did not properly apply “the plain language” of the Supreme Court’s decision to the requirement about admitting privileges. The court sends the case back to the district court with instructions to weigh the state’s asserted benefits against the burdens associated with the requirement.
September 2018: Comprehensive Health seeks a waiver of the layout requirements for its Columbia facility (four recliners with at least three feet of space on both sides and at their feet). It also says it will seek another preliminary injunction from the U.S. District Court that has considered the case against the admitting-privilege requirement.
October 2018: A federal judge denies Planned Parenthood's motion for a temporary restraining order to block the law requiring abortion providers to have admitting privileges at nearby hospitals. The judge says that even if he blocked the law, Planned Parenthood's Columbia clinic would not be able to offer treatment because the state, citing unsanitary conditions it says it uncovered during a September inspection, has refused to renew the Columbia clinic's license. The judge invites Planned Parenthood to refile its motion once the Columbia clinic has complied with state sanitation requirements. The effect of the judge's denial of Planned Parenthood's motion is to leave Missouri with just one abortion provider, Planned Parenthood's health center in St. Louis.
Medication abortion litigation
October 2017: The Missouri Department of Health and Senior Services files emergency rules establishing standards for “complication plans” for medication-induced abortions.
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 extremely 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.
Missouri's complication plans require doctors who provide medication abortions to contract with an ob-gyn, or group of ob-gyns, to treat any complications arising from the procedure. The ob-gyns must be available 24/7.
Comprehensive Health and Reproductive Health Services of Planned Parenthood of Saint Louis Region challenge the regulation, saying it’s medically unnecessary since medication abortions are among the safest medical procedures.
November 2017: A federal judge in Kansas City denies the plaintiffs’ request for a temporary restraining order blocking the regulation. Because Planned Parenthood’s clinics in Columbia and Springfield are unable to find ob-gyns with hospital admitting privileges willing to work with them, they can no longer provide medication abortions.
The effect is that women seeking medication abortions in Missouri must travel to Kansas City or St. Louis, where Planned Parenthood's clinics have agreements with local ob-gyns. And because Missouri also requires a 72-hour waiting period for women seeking an abortion, many patients will have to find overnight accommodations in Kansas City or St. Louis or else travel back to those cities a second time.
May 2018: The U.S. Supreme Court refuses to hear a challenge to a similar complication-plan requirement in Arkansas. As a result, Arkansas becomes the only state in the country that does not provide medication abortions.
June 2018: U.S. District Judge Beth Phillips in Kansas City denies Comprehensive Health’s and Reproductive Health Services’ motion for a preliminary injunction. She rules that they have not shown the ob-gyn regulation “is a substantial burden to a large fraction of women seeking a medication abortion.”
Comprehensive Health’s midtown Kansas City clinic stops performing medication abortions after its state abortion license expires and state health officials delay its renewal. The officials say they could not conduct a complete inspection of the facility because the clinic’s abortion provider had recently quit.
August 2018: After the the midtown clinic finds a new abortion provider, Missouri health officials say they will probably renew the midtown clinic’s license.
In a statement, the director of the Department of Health and Senior Services, Randall Williams, says, “Now that Planned Parenthood has met the requirement of having a physician to perform abortions, the Department anticipates that the facility’s license will be forthcoming. Ensuring regulatory compliance is a key component of our fundamental mission to protect health and keep people safe.”
Litigation over both sets of abortion requirements – those governing surgical abortions and those governing medication abortions – will continue.
At some point, either or both cases could end up before the U.S. Supreme Court. If that happens, Missouri, which has been at the epicenter of the nation's abortion battles, once again may prove a bellwether, pointing the way to how state abortion laws stand or fall.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.