By Dave Andrusko
Planned Parenthood’s Missouri affiliates really do believe that if at first you don’t succeed try, try (and try) again. As NRL News Today reported earlier this month, the 8th U.S. Circuit Court of Appeals overturned U.S District Judge Howard Sachs’ May 2017 temporary restraining order against the state’s requirement that abortionists have admitting privileges at a hospital within 30 miles and abortion clinics to meet the requirements of ambulatory surgical centers.
So instead of asking for relief for all of its abortion clinics in Missouri, Planned Parenthood is asking that the rules be put on hold but this time only for location of its Columbia clinic. And quickly.
“There’s a tight deadline before abortion services will be cut,” the Associated Press reported. “Appeals judges are expected to issue their final mandate that will allow the law to take effect Oct. 1, and abortions are scheduled for Oct. 3 in Columbia.”
Planned Parenthood’s attorneys argue that since the Columbia abortion clinic cannot meet the requirement, only St. Louis would be able to provide abortions: “Without further relief from this Court, at least 22% of women seeking abortion at the Columbia facility will be prevented entirely from exercising their constitutional right to choose, due to their inability to travel the long distance to obtain an abortion in St. Louis.”
In a statement issued Thursday, Mary Compton, spokeswoman for Missouri Attorney General Josh Hawley, said that the office “will continue to vigorously defend Missouri’s commonsense regulations that protect women’s health and safety.”
Three-judge panel unpersuaded
The three-judge appeals court panel “said it did not have enough information to determine how easily abortion clinics could obtain waivers from the licensing rules and whether those requirements posed an undue burden on clinics,” Reuters Nate Raymond reported in early September. “U.S. Circuit Judge Bobby Shepherd, who wrote the opinion, said the lower-court judge also erred by not considering the state’s arguments about the benefits of the provision requiring doctors who perform abortions be affiliated with hospitals.”
Invoking the Constitution to enjoin the laws of a state requires smore than “slight implication and vague conjecture.” [A quote from a prior decision.] At a minimum, it requires adequate information and correct application of the relevant standard. Because we conclude that the preliminary injunction in this case was entered based on less than adequate information and an insufficient regard for the relevant standard, we vacate the preliminary injunction and remand.
Pro-abortionists immediately argued the requirements were already litigated (and rejected) in the Supreme Court’s 2016 Whole Woman’s Health v. Hellerstedt decision. But, in fact, the two laws (Texas’ and Missouri’s) are not identical.
Judge Shepherd, of course, noted that out in his decision. But he also clarified what Hellerstedt held: [internal citations omitted]
As noted in our prior discussion, Hellerstedt’s rendition of the undue burden standard is fairly straightforward: it “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Indeed it emphasized there is “an independent constitutional duty to review factual findings where constitutional rights are at stake.” Thus, Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional. Instead, it held that the “District Court applied the correct legal standard” when it “weighed the asserted benefits against the burdens.” The district court here explicitly refused to “weigh the asserted benefits” stating that to do so “would be impermissible judicial practice.”
In light of Hellerstedt the district court erred in so ruling. On remand, the district court should, at the very least, weigh the state’s “asserted benefits.”
Judge Shepherd was alluding to a fact too often ignored when courts routinely overturn this two-sided, commonsense requirement: there are real benefits to women to have their abortionist affiliated with a nearby hospital, beginning with continuity of care and “responsible participation of the patient in her own medical care,” but extending far beyond that.