KANSAS CITY, Mo. – For nearly 4½ hours on Wednesday afternoon, Dec. 4, Jackson County Circuit Judge Jerri Zhang listened to detailed legal arguments from New York attorneys for Planned Parenthood Federation of America, regarding various motions in their lawsuit to strike down two dozen Missouri statutes regulating abortion providers, based on the newly enacted Amendment 3.
Missouri’s Solicitor General Josh Divine told the judge that the State agreed that the “trigger ban” on abortion (RSMo Section 188.017) could not be enforced after Amendment 3 takes effect, but the State maintains that several other regulations were not voided by the constitutional amendment. He cited an official opinion letter by Attorney General Andrew Bailey, issued on November 24. (See opinion letter here.)
The arguments took place in a packed courtroom on the fifth floor of the downtown Kansas City courthouse, filled with attorneys, media and spectators interested in the case.
Meanwhile, five stories below, on a public sidewalk in front of the courthouse, demonstrators held signs urging the repeal of Amendment 3. About 11 Missouri lawmakers have already pre-filed proposed resolutions that would give voters a chance to repeal or restrict Amendment 3 in a future election.
Jackson County Circuit Court Judge Jerri Zhang
Planned Parenthood’s national organization takes the lead
Several lawyers from the national office of Planned Parenthood and the local ACLU clustered around one counsel table, while several lawyers from the Missouri Attorney General’s Office crowded around the other counsel table. Behind them was a lawyer from the Jackson County Prosecutor’s Office who attended because Jean Peters Baker was named as a class defendant to represent all Missouri prosecutors, thus allowing Planned Parenthood to get venue in Kansas City instead of Jefferson City.
State moves to dismiss prosecutor, transfer case to Jefferson City
Among the preliminary matters taken up by Judge Zhang was a State Motion to Dismiss Prosecutor Baker and to change the venue to the Cole County Circuit Court. The State argued that Baker was not truly an adverse party because she had made public statements that she would not enforce any of the abortion regulations at issue here. Planned Parenthood and the County attorney said Baker was sued in her official capacity, in which she had taken an oath to uphold the Constitution and laws of Missouri. The Court agreed that she was properly named as a defendant and overruled the Attorney General’s motion to dismiss or transfer.
In new lawsuit, State says prior settlement bars some PP claims
The State also argued for dismissal and transfer based on a new lawsuit filed by the Attorney General in Cole County on Nov. 27, which seeks to enforce an earlier settlement agreement by Planned Parenthood, in which they promised not to challenge the constitutionality of the abortion regulations now at issue. That case is styled Missouri ex rel. Bailey v. Comprehensive Health of Planned Parenthood of Great Plains, No. 24AC-CC0981.
Painstaking details in two dozen statutes, pro and con
Most of the time on Wednesday afternoon was spent with both sides parsing, in painstaking detail, the statutes that Planned Parenthood wants stricken, and that the State wants validated. Planned Parenthood argued that most of these laws provided no real health benefit for women, but only delayed or burdened the right to abortion, The laws they challenged included:
- the informed consent requirements including a sonogram and requiring the woman to sign a statement acknowledging she was offered the opportunity to view the ultrasound and to hear the fetal heartbeat;
- the 72-hour waiting period between a patient’s initial visit with a doctor and her abortion procedure;
- the requirement that only physicians can perform abortions, excluding physician assistants and advanced practice registered nurses;
- the mandate that abortion clinics be located within 30 miles of a hospital where the provider has admitting privileges;
- the required submission of all tissue removed during an abortion be submitted to a pathologist. Rules requiring abortion providers report all abortions and abortion complications to the state;
- the requirement that the same physician who initially sees a patient must also be the physician who performs the abortion procedure.
Solicitor notes that Amendment 3 also protects mother’s right to give birth
Solicitor General Divine argued in favor of each regulation, citing benefits to the life and health of the mother. He noted that Amendment 3 also protected the woman’s right to get pre-natal care, which would mean she also has a constitutional right to give birth to the child she is bearing.
Case under advisement
Judge Zhang took the case under advisement at the end of the day and invited counsel to submit proposed orders and findings for the court to consider. Other than ruling on the procedural motions, the judge did not express any inclination as to how she may rule on the motion for preliminary injunction. If the judge were to grant the preliminary injunction while the case is pending, the above laws would be unenforceable against Planned Parenthood until the case proceeds to final judgment. Planned Parenthood says it would begin immediately providing medical and/or procedural abortions at clinic locations in Kansas City, St. Louis and Columbia.
The judge could issue a decision on the motion for preliminary injunction any day, or it could be several weeks.
Republican lawmakers offer new measures to repeal Amendment 3
Republican State Sen. Rick Brattin, Harrisonville, has pre-filed SJR 5 calling for a future ballot measure which would provide that the “right to reproductive freedom shall not be construed to include gender transition surgeries or drugs for children; abortions, excepting cases of medical emergency, fetal anomaly, rape, or incest; or taxpayer funded abortions. In cases of abortions performed or induced because of rape or incest, the abortion may be performed or induced no later than 20 weeks gestational age of the unborn child and only if a police report has been filed alleging the offense of rape or incest.” (See link here.)
Other resolutions have been offered in the Senate and the House. See, for example, the proposal of Arnold Senator Mary Elizabeth Coleman, SJR 25, (See text here.)
Wildwood Republican Rep. Justin Sparks’ proposed constitutional amendment would define a “person” as “every human being with a unique DNA code regardless of age, including every in utero human child at every stage of biological development from the moment of conception until birth.” See HJR 9 (See link here.)
The Jackson County lawsuit case name is Comprehensive Health of Planned Parenthood Great Plains and Planned Parenthood Great Rivers-Missouri versus The State of Missouri, et al. The case number is 2416-CV31931. A link to the Petition and Motion for Injunction is here: https://tinyurl.com/4acy67a6.
EDITOR’S NOTE: Mike Whitehead is a Kansas City trial attorney who serves on the Board of Directors for the Alliance Defending Freedom. His views are his own. This article is not legal advice, but provides information for educational purpose only.