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Comprehensive Health of Planned Parenthood Great Plains v. Williams

United States District Court, W.D. Missouri, Central Division

April 19, 2017

DR. RANDALL WILLIAMS, in his official capacity as Director of the Missouri Department of Health and Senior Services, et al., Defendants.


          Howard F. Sachs United States District Judge.

         Planned Parenthood organizations in Kansas City and St. Louis that divide the State, together with a doctor seeking to perform abortions, have filed motions for a preliminary injunction. They ask for relief from two varieties of statutory and regulatory restriction, imposing (1) a hospital admitting privileges requirement on doctors and (2) an ambulatory surgical center (ASC) requirement on clinics. The challenges here are designed to invoke successful challenges in Texas. Whole Woman's Health v. Hellerstedt, 136 S.Ct 2292 (2016). The Missouri State defendants, Attorney General Hawley and Director Williams, newly appointed executive of the Department of Health and Senior Services, resist judicial relief, adopting positions asserted by the previous State Administration.

         Since the restrictions were imposed in 2007, abortion facilities in Missouri have been intermittently confined geographically. At present, only St Louis has an operating facility. Abortion clinics in Overland Park, Kansas, and Fayetteville, Arkansas, are used by some Missourians. Central Missouri lacks ready access to such facilities and the Springfield - Joplin area is notably unserved.

         This is not a contest over abortion rights as such. All parties must acknowledge that, until viability of a fetus, pregnant women and girls have had, for more than forty years, constitutionally protected rights to obtain abortions. The challenged restrictions were imposed purportedly as health measures for abortion patients. Both restrictions are said by plaintiffs to be unnecessary, useless, burdensome or impossible to achieve, so much so that they have been called Targeted Regulation of Abortion Provider laws (TRAP legislation). The Texas restrictions, challenged here, were so characterized in Justice Ginsburg's concurring opinion in Hellerstedt, 136 S.Ct. at 2321. As noted in my ruling denying dismissal of this case, “targeted regulation” is not an unknown concept in Missouri. An incoming State Senator was recently quoted as advocating regulation as “one avenue” to wholly eliminate abortions in Missouri. (Doc. 68, p. 5).

         The Missouri State defendants contend, however, that the surgical center requirement can be justified as a health measure, that closed centers have not been statistically shown to reduce the rate of abortions, and that the hospital affiliation requirements are both reasonable and achievable, as in St. Louis. The State defendants further contend that the hospital affiliation requirement, invalidated by the Supreme Court, can be defended here because Missouri is more compact than Texas and they have new evidence of reasonableness not presented in the Texas case. With respect to the surgical center requirement, although there is a statute specifying that abortion clinics shall be classified as Ambulatory Surgical Centers (§ 197.200(1) R.S.Mo.), there is a regulation in Missouri (19-CSR 30.30.070(1)), but allegedly not in Texas, allowing relief through deviations granted by the Department.[1] The Department has allowed grandfathering of some surgical facilities that do not comply. The abortion clinic in Kansas City has been exempted by the Department when only medicinal abortions have been proposed. And the Columbia facility has negotiated for some modifications in the regulatory requirements, although it required a lawsuit before this was achieved in 2010 and since that time here have been a number of disputes and alleged changes of position by the Department.

         For reasons discussed below, I am granting a preliminary injunction against enforcing the hospital affiliation requirement (§ 197.215(2) R.S. Mo.; 188.080 R.S.Mo.; 188.027.1(1)(e) R.S. Mo.; and regulation 19-30-060 (1)(c)(4)) for doctors performing abortions. The Texas case clearly controls that ruling. I am also granting a preliminary injunction against using the surgical center requirement, as the Supreme Court did, where the statutory and regulatory pattern is similar to that in Missouri. Even if we assume the regulation permits the Director to disregard mandatory language of the statute and to use “physical facility” regulations no more onerous than are used for procedures performed in typical medical and dental offices, the surgical center rules have not been withdrawn by the Department during the months after the Texas ruling, and the new Director's filings here belie the prospect of his granting relief voluntarily. The principal argument of the State defendants is that, contrary to the conclusions of the Supreme Court, abortions are sufficiently dangerous to pregnant women so that surgery center requirements are appropriate. Thus it would be fruitless to await regulation relief.

         Moreover, taking into account the highly contentious political status of abortions, it would take a very hardy Director, even if not personally opposed to pre-viability abortion rights, to agree voluntarily to establishment of abortion clinics in Springfield or Joplin that would be out of compliance with ASC standards. I am therefore satisfied that plaintiffs should have relief from such standards, as the Supreme Court mandated, and that relief should be prompt, given the needs of women seeking abortions and the need for available clinics to serve their needs. Without the guidance of a favorable ruling here it seems inevitable that the establishment of new clinics would be unduly delayed.[2]

         1. Hellerstedt Controls

         Filings of the parties have added voluminous material to the record, largely directed toward the issue of dangerousness of abortions. Surgery center requirements are needed for safety, according to the State Defendants. (Doc. 84). Plaintiffs argue, correctly I believe, that because the Supreme Court has spoken on this subject I am required to follow. The Court noted that childbirth has a mortality rate 14 times that of abortions, and that colonoscopies, for example, have a mortality rate 10 times higher. 136 S.Ct. at 2315. The Court found that “in the face of no threat to women's health” Texas unreasonably required them to travel to distant surgery centers, “superfacilities.” Id. at 2318. There were three dissenters, two of whom filed outspoken opinions, but the dissenters did not take issue with the majority on the question of abortion safety. In that respect, the ruling was 5 to zero.

         For me to accept new material, copies of studies and expert opinions, and to find a greater safety problem than was found in Hellerstedt, would be impermissible judicial practice. Lower court judges are bound by Supreme Court precedent even if they seriously question what the Court has done. MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015). The lower federal courts cannot second-guess the Supreme Court regarding “underlying facts.” Id. at 772. Defendants cite no authority for what they ask, although they observe that the Missouri Supreme Court did reappraise the issue of teenage capital punishment in advance of the High Court's ruling in Roper v Simmons, 543 U.S. 551 (2005). Although the Court majority agreed with the Missouri Supreme Court, Justice O'Connor's dissent criticized the Missouri Court's practice, saying it was her Court's “prerogative alone to overrule one of its precedents.” She cited State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

         The State Defendants' contention that I should reappraise the abortion safety issue, after the very extensive advocacy on both sides in Hellerstedt, would be like attempting to undermine Brown v. Board of Education, 347 U.S. 483 (1954), based on a Missouri school district contention that the effect of segregation was better understood in Plessy than in the Brown case, or that racial segregation in Missouri is more benign than elsewhere.

         Hellerstedt's factual conclusions were not confined to Texas. The majority relied on Wisconsin and Alabama case-law (136 S.Ct. at 2312) and amicus briefs and materials unrelated to Texas. It is of course true that Hellerstedt, like Roe v. Wade, might someday meet the fate of Plessy v. Ferguson, but only the Supreme Court could reach that result. The filings are of interest, and have been studied to the extent feasible and appropriate, but cannot support a ruling inconsistent with Hellerstedt.[3]

         2. Hospital Affiliation Requirement

         Various Missouri statutes, including criminal prohibitions, mandate that a doctor cannot perform an abortion in a clinic unless he or she has hospital privileges at a nearby hospital, within 30 miles of the clinic. Regulations tighten the requirement to distances within fifteen minutes of the clinic, which raises questions regarding Kansas City.

         In Hellerstedt, however, the Supreme Court found “no significant health-related problem that the new (hospital affiliation) law helped to cure.” 136 S.Ct. at 2311. At oral argument in the Supreme Court Texas counsel acknowledged that he could not cite “a single instance in which the new requirement would have helped even one woman obtain better treatment.” Id. at 2311-12. The Court noted that similar admitting-privileges laws in Wisconsin and Alabama had been ruled useless, from a health standpoint. The Court also found the requirement disabling for almost all abortion practitioners for various reasons unrelated to competency, and places a “'substantial obstacle in the path of a woman's choice.'“ Id. at 2312 (citing the plurality opinion in Casey, 505 U.S. at 877). The Court also reviewed the closing of clinics, apparently caused by the absence of doctors who could meet the affiliation requirement. Without confining its appraisal to Texas, the Court ruled that “the admitting-privileges requirement does not serve any relevant credentialing function.” Id. at 2313.

         Hellerstedt also discussed the burden that closing of convenient clinics has on persons seeking abortions. From the record in that case it recited that many tens of thousands of women would be forced to travel more than 150 miles to find an open clinic if seeking an abortion, and a great number would travel over 200 miles. It is true that increased driving distance does not “always” constitute an “undue burden, ” as noted in Casey, but the Hellerstedt Court said the “the virtual absence of any health benefit” from the hospital affiliation requirement was a factor to be weighed in making an undue burden ruling. Id. at 2313. Balancing is therefore required. Id. at 2309. This necessarily means that the burden to be ...

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