United States District Court, W.D. Missouri, Central Division
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., on behalf of itself, its physicians, and its patients, and Colleen P. McNicholas, D.O., M.S.C.I., F.A.C.O.G, on behalf of herself and her patients, Plaintiffs,
Michael L. Parson, in his official capacity as Governor of the State of Missouri, et. al., Defendants.
CORRECTED MEMORANDUM AND ORDER
F. Sachs United States District Judge.
as abortion providers with facilities in St Louis
(“RHS”), and on behalf of prospective patients,
seek a preliminary injunction stopping several restrictive
provisions of Missouri House Bill 126 from going into effect
this Wednesday, August 28. Four sections would prohibit
abortions in Missouri after various weekly dates, all prior
to fetal viability. Another section would prohibit abortions
of all fetuses, viable and non-viable, where the pregnant
woman's reason to abort is solely based on sex, race, or
prospective Down Syndrome of an expected
defendant Missouri officials offer procedural challenges
before dealing with the merits. Doc. 35. They challenge
“third-party standing” to assert interests of
patients, assert absence of a cause of action under 42 U.S.C.
§ 1983, lack of Article III standing and ripeness to
challenge the antidiscrimination provisions. All except the
ripeness issue (relating to imminence of actual harm) may be
readily rejected, at least for preliminary injunction
purposes, for reasons noted by Judge Sutton in Planned
Parenthood of Greater Ohio v. Hodges, 917 F.3d 908
(6th Cir. en banc 2019). While the Sutton majority
opinion rejected a Planned Parenthood constitutional claim of
public funding discrimination, he wrote:
Third-party standing cases (are distinguishable). In those
cases, the Supreme Court held that abortion providers have
standing to bring the due process challenges on behalf of
their patients. See, e.g., Singleton v. Wulff, 428
U.S. 106, 118 (1976) (plurality); see also Diamond v.
Charles, 476 U.S. 54, 65-66 (1986). But these decisions
do not establish that the providers themselves have due
process rights. Much to the contrary. The premise of these
challenges is that the providers have no
constitutional rights of their own in this setting. Why else
go through the rigamarole of granting the provider
third-party standing to file the claim?
provider's standing to assert and litigate rights of
anticipated future abortion patients was assumed by all
members of the Supreme Court in Ayotte v. Planned
Parenthood of Northern New England, 546 U.S. 320, 324
(2006). It was not questioned by present counsel in
Comprehensive Health of Planned Parenthood Great Plains
v. Hawley, 903 F.3d 750 (8th Cir. 2018) where
footnote 7 indicates a limited challenge to standing, and the
panel observed that “this is a third-party facial
challenge.” That is true here, except that the
challenge to barring specified discriminatory reasons is an
as-applied challenge, limited to prospective patients who
might seek abortions of non-viable fetuses. I defer the
limited ripeness issue and conclude that settled law supports
this case procedurally.
August 6, District Judge Baker in Arkansas dealt with almost
identical questions and granted the requested preliminary
relief as to non-viable fetuses. Little Rock Family
Planning Services v. Rutledge, 2019 WL 3679623 (E.D.
Ark.). Both the time limitations on abortions and the
antidiscrimination provisions for non-viable fetuses have
been uniformly rejected by federal courts, according to the
Little Rock opinion and briefing here. Granting this
motion in large part is required by law, as further explained
below, there being no pertinent factual
Prohibited Reasons for Abortion of Non-viable Fetuses
most challenging and novel of the issues in this case is the
State's attempt to prohibit all abortions (including
those of non-viable fetuses) for special reasons that are
deemed contrary to public policy. Mo. Rev. Stat. §
188.038, effective August 28, 2019. The State would prohibit
a pregnant woman's favoritism of males, for instance, or
apparently healthy prospective infants while choosing to
abort fetuses with disfavored characteristics. For present
purposes I assume that almost everyone in our culture would
be appalled by a pregnant woman's abortion of a fetus
identified as female because the woman or the family
preferred that she give birth to a boy. The legal issue is
whether the public, through legislation, has a right to
intervene and prohibit such a discriminatory or
“selective” abortion of a fetus before viability.
Plaintiffs do not challenge the validity of the prohibitions
after viability, which duplicated existing law. Under
existing Missouri law, no viable fetuses can be aborted,
unless required by the woman's health. Mo. Rev. Stat.
Supreme Court has not dealt with the merits of this question.
Earlier this year, however, it declined to review a Seventh
Circuit ruling that did prevent Indiana from restricting a
discriminatory choice by pregnant women in that State.
Box v. Planned Parenthood of Indiana and Kentucky,
Inc., 139 S.Ct. 1780 (2019). The Court described the
legislation as “barring the knowing provision of sex-,
race-, or disability-selective abortions by abortion
providers.” Id. at 1781. The denial of
certiorari was explained by the novelty of the legal issues,
which “have not been considered by additional Courts of
Appeals.” Id. at 1782. The concurrence by
Justice Thomas demonstrated great interest in the ultimate
question of a State's authority, in his phrasing, to
prevent “abortion from becoming a tool of modern-day
eugenics, ” citing the recent State laws seeking to
prevent abortions motivated by race, sex, genetic
abnormality, and Down Syndrome. Id. at
panel opinion in the Indiana case that was denied certiorari
stated simply that “the non-discriminatory provisions
clearly violate well-established Supreme Court precedent
holding that a woman may terminate her pregnancy prior to
viability, and that the State may not prohibit a woman from
exercising that right for any reason.”
Planned Parenthood of Indiana and Kentucky, Inc. v.
Commissioner of the Indiana State Dep't of Health,
888 F.3d 300, 302 (7th Cir. 2018) (emphasis
added). Judge Manion, expressing dissatisfaction, agreed that
Supreme Court precedent invalidated the abortion motivation
prohibition that Indiana sought to impose, but only
“[b]ecause I have no choice but to follow Supreme Court
precedent.” Id. at 316.
recent Arkansas decision reaches the same conclusion, for the
same reason. That is the result reached by other federal
court judges who have ruled the question. In the district
court case affirmed by the Seventh Circuit, the ruling stated
that under existing law, as established by the Supreme Court,
a “woman's right to choose to terminate a pregnancy
pre-viability is categorical.” Planned Parenthood
of Ind. & Ky., Inc. v. Comm'r, Indiana State
Dep't of Health, 265 F.Supp.3d 859, 866 (S.D. Ind.
2017). In Preterm-Cleveland v. Himes, 294 F.Supp.3d
746 (S.D. Ohio 2018), the Indiana case was relied on to reach
the same result. Preterm has been appealed and was
argued in the Sixth Circuit in January, 2019. Little Rock
Family Services, supra, at p. 36. Significant rulings on
this issue may be imminent.
other Supreme Court language is relied on to invalidate any
prohibition of pre-viability abortions, the “essential
holding” most quoted is from the plurality opinion in
Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 846 (1992), containing the rule
that “[b]efore viability, the State's interests are
not strong enough to support a prohibition of abortion or the
imposition of a substantial obstacle to the woman's
effective right to elect the procedure.” It was
repeated, “a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy
before viability.” Id. at 879. Thus, cases to
date have accepted the woman's “ultimate
decision” and have rejected prohibitions of certain
reasons for the decision.
has been voiced, as noted, perhaps most meaningfully by Judge
Easterbrook in dissenting from the Seventh Circuit's
close vote denying a rehearing en banc in the Indiana case.
Planned Parenthood of Indiana and Kentucky Inc. v.
Commissioner of the Indiana State Dept of Health, 917
F.3d 532 (2018). He argued that “Judges often said that
employers could fire workers for any or no reason, ”
and thereafter “regularly created exceptions when the
discharge was based on race, sex, or disability.”
Id. at 536. Of course Supreme Court justices
sometimes overstate principles, and then reword the rules.
But an appellate court that modifies a rule is appropriately
the court that announced the rule. Lower court judges do not
often “correct” the language of the Supreme
Court. While it can be speculated that the Supreme
Court's language in Box implicitly invited
appellate judges to review the merits of prohibitions of
discriminatory abortions, any such invitation was not
addressed to district judges.
are no pertinent factual disputes on this aspect of the case.
For present purposes I assume, in accordance with
declarations offered by the Missouri defendants, that there
are adequate public policy reasons to adopt the prohibitions
against aborting fetuses because they are disfavored by the
pregnant woman on grounds of sex, race or Down Syndrome
likelihood. I recognize that a Down Syndrome abortion is a
very debatable subject, but it would likely be a legislative
issue rather than a judicial issue if abortion jurisprudence,
as established by the Supreme Court, permitted a legislative
override of any aspect of a woman's right to abort a
non-viable fetus. All judicial rulings so far preclude such ...