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Reproductive Health Services of Planned Parenthood of St. Louis Region, Inc. v. Parson

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

August 27, 2019

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,
v.
Michael L. Parson, in his official capacity as Governor of the State of Missouri, et. al., Defendants.

          CORRECTED MEMORANDUM AND ORDER

          Howard F. Sachs United States District Judge.

         Plaintiffs, 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.[1] 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 infant.[2]

         The 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?

         A 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.

         On 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 disputes.[3]

         I. Prohibited Reasons for Abortion of Non-viable Fetuses

         The 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. § 188.030.

         The 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 1783.[4]

         The 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.

         The 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.

         Although 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.

         Dissatisfaction 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.

         There 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 ...


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