Updating PPFA’s challenges to pro-life Missouri law SB5

By Dave Andrusko

Judge Beth Phillips

On Thursday the Kansas City Star provided a useful summary/update of one phase of the ongoing abortion battle in Missouri. Judy L. Thomas’s story is titled, “Battle over medication abortion rages on in challenge to new Missouri law.”

As you remember, last year the Missouri governor called a special session which passed a number of important abortion-related bills.

Naturally pro-abortionists challenged most of them, alternating between calling them unnecessary and costly, on the one hand, and discriminatory and unconstitutional, on the other hand.

Planned Parenthood Great Plains and Planned Parenthood of the St. Louis Region and Southwest Missouri are asking Judge Beth Phillips to block enforcement of the requirement that abortion providers performing chemical abortions have two ob-gyns on call 24/7.

Thomas notes toward the end of her story what we will note early:

The lawsuit is the second to be filed by Planned Parenthood challenging the new law. In the other case, filed in Jackson County, the groups asked the court to block a portion of the law that requires that the same physician providing an abortion must inform the patient of the medical risks three days before the procedure.

A Jackson County Circuit Judge found that the provision did not impose an undue burden on women seeking abortions, and it is on appeal in the state circuit court.

Thomas is alluding to a failed lawsuit decided last October which sought a temporary restraining order and a preliminary injunction. As NRL News Today explained, the specific part of SB 5 at issue before Judge S. Margene Burnett was the requirement that the abortionist himself meet with the woman three days before she undergoes the abortion, should she go forward. (For shorthand purposes, it was described as the “same-physician requirement.”)

He is to talk about the potential immediate and long-term medical risks to her. Those include among other risks infection, hemorrhage, cervical tear or uterine perforation, harm to subsequent pregnancies, and adverse psychological effects.

The state maintained that meeting with the abortionist–as opposed to merely “qualified professionals”–was important to continuity of care. The plaintiffs argued the provision was both unnecessary and an “undue burden” on a woman’s right to abort.

Now, back to the Department of Health and Senior Services’ regulations which “prohibit medication [chemical] abortion services unless providers obtain written contracts with two ob-gyns who have local hospital admitting privileges and who agree to be on call 24 hours a day, seven days a week to treat complications from medication abortion,” as Thomas describes the requirement.

In its lawsuit asking for a preliminary injunction, Planned Parenthood says (1) this regulation is causing “irreparable harm” to the clinics and their patients; (2) “Medication abortions are incredibly safe”; and “These stringent requirements are not imposed on any other medical service in the state, including medications and surgeries with far higher complication rates.”

The state of Missouri offers a variety of counter-arguments. Thomas writes that the

State argues that the law put in place “common-sense regulations” that protect women and ensure they will have access to adequate care in case of medical emergencies.

“The regulation promotes women’s health and safety in numerous, material ways,” it said in a recent court filing, adding that the benefits of the regulation “outweigh any minimal burdens on access.” Medication abortions, the state said, are nearly six times as likely to result in a complication as first-trimester surgical abortions.

Moreover, state Solicitor General John Sauer

recently argued that the request for a preliminary injunction should be denied and the lawsuit dismissed. Among the reasons given: Planned Parenthood had failed to make a good-faith effort to comply with the regulation and could not prove that the regulation presented a significant obstacle to the majority of women seeking medication abortions.

“The regulation does not pose a substantial obstacle to a large fraction of women because there is no constitutional right to medication abortion, and the regulation does not affect surgical abortion,” the state said in a recent court brief.

Planned Parenthood has “greatly overstated” the burdens that the regulation places on women seeking abortions, the state argued.

“Plaintiffs’ evidence rests on the assumption that all women will travel hundreds of miles to obtain a medication abortion instead of obtaining a safer surgical abortion nearby,” the state said in its brief filed Monday.

In a prior story NRL News Today outlined Missouri’s explanation why the requirement for two ob-gyns is constitutional in the case of chemical abortions.

That defense began by noting that while the 1992 Supreme Court Casey decision “recognizes a constitutional right to abortion, it does not establish a constitutional right to medication abortion in particular. Rather, as the Supreme Court confirmed in Gonzales v. Carhart, the State may regulate, or even prohibit, a particular method of abortion, so long as ‘a commonly used and generally accepted method of abortion” remains available’”—in this instance, surgical abortions.

The results of the law—and the failures to date of PPFA legal challenges—is that Kansas City, St. Louis, and Columbia are the only three cities in Missouri providing abortions.

Planned Parenthood’s St. Louis center provides both medication and surgical abortion, the Kansas City clinic offers only medication abortion, and the Columbia center provides only surgical abortion.