By Rudi Keller
The document asks the high court to suspend Jackson County Circuit Judge Jerri Zhang’s preliminary injunction blocking enforcement of almost all of the state’s laws regulating abortion services. If the court does not grant the stay immediately, the filing states, the high court should hold an expedited hearing on Aug. 11.
In response, attorneys for the ACLU of Missouri and Planned Parenthood asked for arguments the week of Aug. 18.
The battle over abortion rights has been a state question since 2022, when the U.S. Supreme Court overturned the landmark 1973 Roe v Wade decision. The decision triggered a law that banned all abortions in the state except in cases of medical emergency that endangered a woman’s life.
Abortion became legal again in Missouri under the provisions 52% of voters approved as state constitutional Amendment 3 in November. But because the amendment did not directly repeal state laws banning or regulating abortion, Comprehensive Health of Planned Parenthood Great Plains, based in Kansas City, and Planned Parenthood Great Rivers, based in St. Louis, sued to block enforcement of those laws.
The state does not dispute that women have a right to obtain an abortion prior to when a fetus is viable, according to the filing signed by state solicitor general Josh Devine and five other attorneys.
But the laws and regulations blocked by Zhang deal with licensing and regulation of procedures that were in place before the 2022 decision overturning Roe v Wade, the attorneys wrote, and should be allowed to remain in force.
“Planned Parenthood wrongly claimed that it could not provide abortion in Missouri unless all the state’s health-and-safety laws were enjoined,” the attorneys wrote. “But from the beginning of this litigation, the state has expressly agreed that Planned Parenthood can perform elective pre-viability abortions under Amendment 3. The state’s lone interest is ensuring that Missouri abortions are safe for the woman…”
In a response, attorneys for the ACLU of Missouri, which is representing the state’s two Planned Parenthood affiliates, wrote that granting a stay of Zhang’s ruling would deny Missourians the rights enshrined in the Constitution in November.
“The trial court made clear factual findings supporting its determinations and committed no error of law,” the response signed by ACLU attorney Gillian Wilcox and 13 other lawyers. “And (the state of Missouri) suffer no irreparable harm from being prevented from enforcing laws that are now presumptively unconstitutional.”
Surgical abortions resumed from February to May following two earlier rulings by Zhang, but ended when the Missouri Supreme Court struck down her orders on technical legal grounds. Surgical abortions resumed at the Planned Parenthood clinics in Kansas City and St. Louis Zhang issued her July 3 decision and appointments are being scheduled for a resumption of abortion services in Columbia next week.
In her July 3 order, Zhang found that the total ban on abortions that took effect in 2022 clearly conflicted with the rights secured by the abortion amendment, which received 52% of the vote in November.
She also blocked enforcement of a law requiring two appointments, 72 hours apart, to obtain abortion services and that women be required to take state-produced material on fetal development.
The order blocks enforcement of laws requiring special abortion facility licensing and that doctors performing abortions have admitting privileges at a nearby hospital.
Zhang’s order keeps in place rules that only doctors can provide abortion services and that the woman seeking an abortion have an in-person appointment. The appointment can, however, be by telemedicine, Zhang ruled as she blocked a separate rule.
Medication abortions are not being offered because Zhang blocked enforcement of regulations describing what should be in a complication plan for medication abortion patients. The rules stated what the plans should include, such as instructions for women if bleeding occurs and designating a hospital ready to provide care in emergencies. Zhang’s decision left the law requiring the complication plans in place, but without regulations defining the plans, they cannot be submitted or approved.
The complication plans are an essential safeguard when problems occur, the team from the attorney general’s office. While medication abortions are the most common way pregnancies are terminated, the safeguards of current law must be in place to allow them, the attorneys wrote.
“Amendment 3 establishes a generic right to abortion, not a right to a specific procedure, and there was no right to a specific procedure under Roe either,” the attorneys wrote.
In the filing to the Supreme Court, the team from the attorney general’s office challenged both the venue — the location of the case — of the Planned Parenthood affiliates as well as the legal basis for the challenge to state laws and regulations.
The case should be in Cole County, not Jackson County, the attorneys argue. The lead defendant is the Jackson County Prosecuting Attorney, Melesa Johnson, but the state defendants are all headquartered in Jefferson City.
The attorneys for the state also argue that some of the blocked laws and regulations also apply to non-abortion medical procedures. There is one law for example, requiring abortion providers to be licensed as ambulatory surgical centers with admitting privileges at a nearby hospital.
If the ruling stands, the attorneys wrote, “the state could no longer require physicians providing orthopedic surgeries in ambulatory surgical centers to have clinical privileges in hospitals…even though that has nothing to do with abortion.”
The licensing regulations are general and Planned Parenthood should be governed by them, the attorneys wrote.
In their response, the ACLU and Planned Parenthood attorneys argued that the state is trying to divert the court from the underlying issues.
“Respondents are subject to medical licensing requirements and professional ethical standards applicable to all health care,” the attorneys wrote. “They challenge only discriminatory abortion specific requirements that serve no legitimate medical purpose and make constitutional rights inaccessible. Respondents sue precisely to vindicate their patients’ rights to receive essential healthcare in Missouri.”
Issuing a stay of Zhang’s order would deny Missourians their rights, the attorneys wrote.
“Patients have already scheduled abortions at Respondents’ health centers for the coming weeks,” they wrote. “A stay from this court would mean that these appointments would have to be canceled and these patients could not obtain an abortion in Missouri, despite their constitutional right to do so.”
While Planned Parenthood and the state battle in court over the regulatory framework for providing legal abortions, a separate court battle is also underway in Cole County over the language for a proposal placed on the ballot by state lawmakers to repeal the abortion rights amendment.
A hearing is scheduled for Thursday to set a trial date for the Cole County case.
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