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.
ORDER DENYING PARTIAL STAY
F. Sachs United States District Judge.
State Defendants seek a partial stay (Doc. 54) pending appeal
of the preliminary injunction (Doc. 51), insofar as it
temporarily protects abortions at 20 weeks’ gestation,
several weeks earlier than plaintiffs voluntarily cease
conducting rather belated abortions of non-viable fetuses.
The State Defendants offer little to legally justify
prohibitions that are facially contrary to the Supreme
Court’s blanket protection of abortion rights of women
while fetuses are non-viable. Their contentions center on
questions regarding plaintiffs’ standing to seek third
party protection of abortion rights. Further consideration of
that question strengthens my view that abortion providers
have such standing, under Supreme Court opinions and Eighth
Circuit rulings going back more than forty years. There have
been very few serious challenges to standing, and no
successful ones in Federal Courts. The most vigorous support
for the State Defendants’ contention seems to be in a
dissenting opinion by Justice Thomas, which other dissenting
justices did not join.
in this Circuit on provider standing in an abortion
controversy was dealt with in a long footnote by Chief Judge
Gibson in Planned Parenthood of Minnesota, Inc. v.
Citizens for Community Action, 558 F.2d 861,
865 n. 3 (1977) where it was acknowledged that, as of 1977:
The extent to which a litigant may assert the constitutional
claims of third parties not before the court has not been
clearly delineated . . . [but] in the context of this case we
believe that, as a prudential matter, Planned Parenthood
should be allowed to assert the constitutional claims of its
patients. There is an intimate relationship between Planned
Parenthood and its patients and the right of a pregnant woman
to secure an abortion is “inextricably bound up”
with the ability of Planned Parenthood to provide one.
Singleton v. Wulff, supra at 114-15. Also, the
pregnant woman's ability to assert her own rights is
beset with obstacles. She may be dissuaded from litigating
because of her desire to protect her privacy; also, the
imminence of mootness renders her claims less capable of
assertion. Singleton v. Wulff, supra at 117. We
agree with the District Court that Planned Parenthood should
be permitted to assert the constitutional claims of its
patients. (citing cases).
district, the Community Action ruling was relied on
to support standing in Planned Parenthood of Kansas and
Mid-Missouri, Inc. v. Drummond, 2007 WL 2811407, at * 3
(W.D.Mo.) for the same reasons that are applicable here.
State Defendants continue to argue that the plurality opinion
in Singleton is not authoritative in supporting
standing because Justice Stevens concurred with some
reservations. If that left standing somewhat unclear, 40
years ago, the intervening years have never seen a
provider loss on that that ground. In briefing on other
issues, the State Defendants rely on Bryant v.
Woodall, 363 F.Supp.3d 611 (M.D.No.Car. 2019) (appeal
filed June 26, 2019), as a standing controversy that supports
doubt. But the District Court found standing, and the
recommended rejection by the Magistrate Judge was on a theory
that the abortion restriction was an old law, apparently
unenforced - - while citing a large group of cases supporting
provider standing to challenge recently enacted laws. 2007 WL
4055266, at * 7.
contending that Singleton did not settle standing
law in favor of abortion providers, the State Defendants fail
to note that it was relied on for third party protection of
constitutional rights by a seven-justice majority in
Powers v. Ohio, 499 U.S. 400 (1991).
on practical issues may be useful. As mentioned in
plaintiffs’ brief (Doc. 63) the Planned Parenthood
provider and medical personnel like the co-plaintiff could
face criminal charges and licensing issues if they disobeyed
enacted legislation that remains in effect. Mo. Rev. Stat.
§§ 188.375(3), 558.011(1) (2). The suspension of
the 20-week limitation allows abortions at a rate of about
100 per year, or two per week pending litigation. In my
initial ruling I suggested that criminal proceedings were
unlikely, given the position of the local prosecutor. But
licensing issues are currently pending in State Court, and
could be an aggravating issue. Plaintiffs consider it prudent
to move cautiously regarding “Down Syndrome
abortions” in the absence of judicial protection. (Doc.
60). One may suppose that if the statute is in effect pending
appeal they would forego about two abortions per week that a
requested stay would make legally dubious, and the practical
harm to plaintiffs would thus be modest. The primary effect
of a stay, as the State Defendants suggest (Doc. 64, p. 6)
would be to bar a few abortions pending litigation. The State
Defendants correctly treat this as a very significant result
(almost comparable, they might say, to a capital punishment
controversy). It gravely affects a few non-viable fetuses
(“unborn children”) but it also gravely affects
the lives and family situation of a few pregnant women, who
would be choosing abortions during the last available week or
two before viability.
more than forty years the Supreme Court has recognized a
right under the Constitution for women to make the ultimate
decision regarding abortion of non-viable fetuses. There is
no such legal right in the Federal Court system for
preserving the potential lives of non-viable fetuses. While
the State Defendants may hope for a change in law, an
“obedient judge” has an obligation to give weight
to the current recognized legal right, rather than a legally
rejected right (prior to viability). Recognizable legal harm
from a stay entirely favors the plaintiffs.
briefly with some side-issues, the State Defendants contend
they can overturn more than forty years of standing law,
favoring abortion providers, by newly argued theories. That
may be conceivable, at the Supreme Court level, if focus of
the Court turns to the writing of Justice Thomas in
Hellerstedt. But the lower courts need to await such
a change in law, and in this Circuit Community
Action would continue to be applied against the
contentions of the State Defendants.
Section 1983 gives an independent claim to abortion providers
is being questioned elsewhere, but Judge Sutton wrote it
makes no difference, because abortion providers can still
offer protection to prospective patients - - otherwise there
would be no reason for the “rigamarole” going
beyond the standing of providers on their own. (Doc. 51, p.
State Defendants continue to place emphasis on Kowalski
v. Tesmer, 543 U.S. 125 (2004), despite that case
involving the legal profession and clients rather than
abortion cases and analogous areas of the law, and
Kowalski’s acknowledgment that the Court has
been “quite forgiving” in cases, like the
abortion context, where lack of third party representation
“would result indirectly in the violation of a third
parties’ rights.” Id. at 130.
argument in the defendants’ Reply Brief (Doc. 64, p. 4)
is that plaintiffs have an obligation to
“identify” future patients “to have
standing.” They cite Summers v. Earth Island
Institute, 555 U.S. 488 (2009) for this proposition.
That case rejected an environmental organization’s
challenge to procedural regulations after the original
controversy over a small sale of land had become moot. The
Court majority held the organization to development of a
concrete dispute involving members. There has never been an
obligation in abortion litigation as a condition of standing
to somehow forecast that identifiable women would become
future patients. Hellerstedt, a case more recently
decided than Summers, demonstrates the factual
State Defendants also repeatedly find comfort in the
“partial birth abortion” case, Gonzalez v.
Carhart, 550 U.S. 124, 167 (2007), where Justice Kennedy
wrote that “as-applied challenges” might be made
where there were special physical conditions. Justice
Kennedy, who joined in and presumably assigned
Hellerstedt to Justice Breyer, clearly did not
intend to bar abortion providers from representing
prospective patients, where, as here, there is commonality of
interest and no suggestion of specialized problems deserving
attention on a woman-by-woman basis. Such a result would
defeat abortion rights in almost all cases, an objective that
is foreign to Gonzalez. At oral argument when it was
suggested that only one in thirty women seeking abortions
could be served if deprived of provider support, counsel
seemed content with such a result. Doc. 52 p. 35-36. ...