The Missouri Attorney General’s Office argued that regulations like informed consent laws should remain because for most women, abortion is ‘against their moral beliefs’
BY: ANNA SPOERRE
Missouri Independent
Missouri’s trigger law banning nearly all abortions remains in place. But at 12:01 a.m. Friday, Amendment 3 will go into effect.
The constitutional amendment, which received 51.6% of the nearly 3 million votes cast, prohibits the legislature from regulating abortion prior to the point of fetal viability — generally seen as the point at which a fetus can likely survive outside the womb without extraordinary measures.
Planned Parenthood officials said they have providers and staff prepared to start seeing patients for walk-in medication abortion appointments at three clinics — in Kansas City, St. Louis and Columbia — beginning Friday, followed later by scheduled surgical abortions.
But whether that happens depends on the outcome of a lawsuit that had its first hearing before a Jackson County judge Wednesday morning.
“What we don’t have are the abilities to overcome state restrictions and hurdles that were intended to deny care,” Emily Wales, President and CEO with Planned Parenthood Great Plains, said Wednesday evening.
Less than 24 hours after voters narrowly approved Amendment 3, the ACLU of Missouri, Planned Parenthood Great Plains and Planned Parenthood Great Rivers filed a lawsuit seeking to take down decades worth of overlapping restrictions and bans on abortion on the books in Missouri.
There was no disagreement between Planned Parenthood and the Missouri Attorney General’s office that Amendment 3 makes unconstitutional the trigger law that went into effect in June 2022 when the U.S. Supreme Court overturned the right to abortion.
The disagreement instead revolves around more than a dozen “targeted regulation of abortion providers” laws, also known as TRAP laws, that previously made abortions all but inaccessible in Missouri prior to the total ban taking effect.
Planned Parenthood is asking a Jackson County judge to grant a preliminary injunction which would immediately declare the current ban and the TRAP laws unconstitutional.
“Every single day that Missourians cannot access their constitutional rights, they’re being denied critical care,” Wales said.
Solicitor General Josh Divine, who argued Wednesday’s hearing on behalf of the state, characterized the lawsuit as “unusually aggressive,” saying it would be more appropriate for the plaintiffs to challenge each TRAP law individually rather than all together “on a very short fuse.”
He added that preliminary injunctions should only be granted in “drastic, extraordinary circumstances.” The lawsuit at hand, he contended, does not apply because Missourians are still able to access abortion in Illinois to the east and Kansas to the west.
“Nobody’s actually going to be materially affected by what this court does,” Divine added.
A decade ago, more than 5,000 abortions were performed in Missouri, according to data from the Missouri Department of Health and Senior Services.
By 2020, two years before the abortion ban went into effect, that number dropped to 167 as a result of the TRAP laws.
Sam Lee, a longtime Missouri anti-abortion activist and lobbyist, said he’s been pleased by the attorney general’s defense of Missouri’s anti-abortion laws.
If the TRAP laws remain in effect, as Lee is hoping, “it may severely affect Planned Parenthood’s ability to do abortions, because they weren’t doing abortions when those laws were in effect some years ago.”
Judge Jerri Zhang, who is overseeing the case, did not immediately rule on the injunction when the hearing concluded late Wednesday evening.
She did, however, deny the state’s request to remove Jackson County Prosecutor Jean Peters Baker as a defendant and move the case to Cole County. Earlier this year, a Cole County judge struck Amendment 3 from the ballot, a decision that was quickly overridden by the Missouri Court of Appeals.
The attorney general’s office said they plan to appeal Zhang’s decisions, arguing that Peters Baker does not appropriately represent all statewide prosecutors because of her previous statements in support of abortion rights.
The Missouri Attorney General’s Office also posed a court challenge to the Planned Parenthood suit. This latest lawsuit, filed last week in Cole County, questions Planned Parenthood Great Plains’ ability to sue the state, claiming a 2010 settlement agreement prevents them from doing so.
Missouri’s TRAP laws
For decades, Missouri legislators have passed laws restricting abortion access and regulating the procedure.
“The voters have now changed all of that,” Eleanor Spottswood, an attorney with Planned Parenthood, argued before the court Wednesday.
Amendment 3 states, in part, that “the right to reproductive freedom shall not be denied, interfered with, delayed, or otherwise restricted unless the government demonstrates that such action is justifiable by a compelling governmental interest achieved by the least restrictive means.”
The litigation challenges numerous current laws, including a mandatory 72-hour waiting period between an initial appointment and the abortion procedure; requirements that abortion clinics must have admitting privileges at a hospital roughly 15 minutes away; and a requirement that the same physician who initially saw the patient also perform the abortion.
The lawsuit is also challenging the current law criminalizing physicians who perform abortions.
Spottswood argued that a failure to immediately strike down the TRAP laws would cause “irreparable harm” to Missourians because “patients and providers have to do twice the work to access abortion.”
Meanwhile, the attorney general’s office argued that striking down such laws would cause more harm.
Divine on multiple occasions cited an FDA label for mifepristone, one of two medications used to induce a medication abortion, that shows that according to two U.S. studies of about 1,00 women, up to 5% of women who took mifepristone ended up in the emergency room. It did not specify if the emergency room visits were necessary.
The same FDA label says that across three studies of more than 14,000 women who took mifepristone, fewer than 0.6% were admitted to the hospital as a result of the medication.
Divine also noted that no individual women seeking abortions were named as plaintiffs in the lawsuit, arguing that’s because women don’t actually want abortions once given more information. He said this is why the state’s requirements that those seeking abortions first be given the state’s informed consent booklet should remain.
“It’s against their moral beliefs,” Divine said. “But they’re being pressured, often by an abusive partner, by parents, things of that nature, so what we’re trying to do is we’re trying to create a situation where those women can in fact make the choice that they want to do, and we know most of the time that’s childbirth.”
About one in four women in the United States have an abortion before the age of 45, according to 2020 data. In 2021, around 94% of abortions occurred before 14 weeks gestation. Abortions later than 20 weeks account for fewer than 1% of all abortions in the United States, according to the Centers for Disease Control and Prevention.
Divine, in his final arguments Wednesday, characterized the state’s TRAP laws as incidental, much like speeding laws or road construction that could delay someone getting to an abortion. But he said the TRAP laws don’t fall under the strict scrutiny requirement and therefore don’t require an immediate ruling.
Zhang asked if delaying an abortion through the required 72-hour waiting period would infringe on a patient’s autonomy, especially if the patient was a day or two shy of 10 weeks gestation, when procedures switch from medication to surgical abortions.
Divine responded that the attorney general’s office believes Amendment 3 gives Missourians the right to an abortion, but doesn’t give them the right to a certain abortion procedure.
He also noted that Amendment 3 doesn’t specifically mention the legalization of mifepristone, alluding to future attempts by the incoming GOP administration to enforce the Comstock Act, an 1873 law that bans mailing obscene material, including for the use of abortion.