EDITOR’S NOTE: Mike Whitehead is a Kansas City trial attorney and outside general counsel for Missouri Baptist Convention. His views are his own. This article is not legal advice but provides information for educational purposes only.
KANSAS CITY, Mo. – Abortion clinics will remain closed in Missouri for now, in spite of Amendment 3, after a split decision by a Kansas City trial judge on Friday, Dec. 20, enjoined the total ban on abortions, but left in place certain licensing regulations that Planned Parenthood facilities do not meet.
The abortion business was not happy.
“As a result of today’s mixed decision, Missourians continue to be deprived of time-sensitive, essential, and constitutionally protected health care, despite voting in favor of a constitutional right to abortion,” a Planned Parenthood spokesman stated.
Planned Parenthood’s New York attorneys had argued that, under Amendment 3’s “right to reproductive freedom,” all old laws regulating abortion should be “presumed invalid,” including:
- A law that patients must first see a doctor for an in-person appointment to confirm gestational age before prescribing the pills used in medication abortions.
- A law that abortions can only be performed by physicians, and not physicians’ assistants or other advanced practice clinicians.
- A law that licensing standards for ambulatory surgical centers apply to abortion clinics.
But Judge Jerri Zhang disagreed that the above laws have been proved invalid, and so she refused to issue a temporary injunction halting enforcement during the remainder of the litigation.
Zhang
“The language in these statutes pertain to the actual licensure of the facilities rather than the rights of individuals seeking reproductive care,” she said. “As they pertain to abortion facilities, the Court finds there may be a compelling governmental interest in licensing abortion facilities in this manner, and at the preliminary injunction phase, Plaintiffs have not shown the probability of success on the merits….”
It is significant that the text of Amendment 3 uses the phrase “presumed invalid,” but the judge was careful in applying this phrase. As a rule, courts must presume the constitutionality of legislative acts unless the challenger proves otherwise.
The Missouri Attorney General Andrew Bailey had agreed that Amendment 3 invalidated the “total ban” law, and some other sections. The judge did enjoin some of these laws during the pendency of the lawsuit. For example, the judge enjoined:
- A requirement that physicians providing abortions have admitting privileges at hospitals with obstetric or gynecological care within 30 miles or a 15-minute drive.
- A mandatory 72-hour waiting period between an initial abortion consultation and the abortion procedure.
- A law requiring all fetal tissue removed from the uterus during an abortion be sent to a pathologist.
- The state’s informed consent requirement, which includes access to the state’s informed consent booklet.
- A “telemedicine ban” which required that a medication be administered in the presence of the doctor who prescribed it.
- A requirement that before administering medication abortion, providers must have a complication plan in place, which includes access to an on-call OB-GYN who is available at any time, in the case of a complication.
Pro-life groups on Friday, Dec. 20, expressed relief that Planned Parenthood clinics in Missouri will remain closed for now.
Abortion industry leaders expressed disappointment. “It is unacceptable that tomorrow, just like for the past two weeks, Missourians will have a constitutional right that cannot be realized in their home state,” a Planned Parenthood executive stated after the court’s decision was announced. “Unfortunately, a key tool weaponized by anti-abortion politicians – the licensure process – remains in effect, and we are unable to restore care.”
A copy of the full order may be viewed here. Judge Zhang’s order is temporary and may change after the full trial process is complete. A case management conference has been set for Feb. 27, 2025.