People who need abortions in Missouri have had to seek care outside of the state, even after voters enshrined the right to an abortion in the state constitution in November.
That’s because a licensing requirement that applies to abortion facilities throughout the state remains in effect, even while other laws — including the near-total abortion ban — are temporarily on pause. Planned Parenthood representatives say they can’t begin offering the procedure unless the licensing requirement is blocked.
In a hearing Friday, attorneys for Planned Parenthood asked Jackson County Circuit Court Judge Jerri Zhang to reconsider her December decision to uphold the requirement.
Eleanor Spottswood argued the statutes were unconstitutional because they discriminate against abortion providers and patients. Spottswood also argued the requirement interferes with and delays a patient's reproductive freedom, restricting where and how patients can receive care to a degree where none of the nine Planned Parenthood health centers can provide even medication abortions.
“No other single oral medication triggers an entire facility licensing scheme,” Spottswood said. “No other single procedure triggers an entire licensing scheme especially not one as safe as procedural abortion.”
Under the requirement, any health center or doctor’s office performing abortions must obtain a special license issued by the Missouri Department of Health and Social Services. The department is now under the purview of Republican Gov. Mike Kehoe, who took office earlier this month.
Getting a license requires meeting regulations regarding how buildings are set up, and Planned Parenthood's clinics do not meet the physical requirements. Licensing requirements also mandate what exams are required; for example, all patients, even medication abortion patients, must have pelvic exams. Patients' pregnancies must be confirmed by a variety of tests performed by technicians with specific training, none of which Planned Parenthood deems necessary.
In the December ruling, Zhang said because this requirement applied to the licensing of facilities rather than the rights of individuals seeking care, the government might have a compelling interest in requiring such licenses.
In a motion asking Zhang, a 2021 appointee of former Republican Gov. Mike Parson, to reconsider shortly after the ruling, Planned Parenthood’s attorneys said the licensing requirement singles out abortion providers and patients from other medical providers.
Under Amendment 3, providers and patients are protected from differential treatment. The court did not address this in the initial injunction, Planned Parenthood argued. Other health care providers are not bound by the same rules.
Providers across the state may offer vasectomies, cataract removals, liposuction and colonoscopies, among other surgeries, and are not subject to the licensing if the surgeries are less than half of the medical office’s services provided.
A physician's office can even perform miscarriage care using the same medication as medication abortions without needing the license, assuming the surgeries make up less than half of its services.
But Missouri Solicitor General Josh Divine said the Planned parenthood argument was unsatisfactory.
“Missouri law expressly gives Planned Parenthood an opportunity to seek waivers from the requirements they challenge, and the Department has repeatedly granted waivers in the past,” Divine wrote. “Planned Parenthood has yet to request any waivers.”
Spottswood said obtaining such waivers had required Planned Parenthood to go to extreme lengths. She also raised concerns about the pelvic exam, which has no bearing on a medication abortion. Patients might not wish to have something inserted into their vagina for a variety of reasons, she said, including past traumatic experiences.
Spottswood added many doctors refuse to perform these exams because they violate their moral and ethical code, in effect creating a ban even if they have this license.
Divine, on the other hand, said they are part of a routine physical exam commonly performed during the first prenatal care visit.
Zhang did not rule Friday, instead opting to await supplemental documents before she will issue a written decision. In December, it took over two weeks between the hearing and her order.
In that order, Zhang temporarily put a halt to several of the state’s laws restricting abortion providers, ruling they were unlawful now that the constitutional right to receive an abortion in Missouri is in effect. Amendment 3, which enshrined that right, won approval in November with 51.6% of nearly 3 million votes cast.
Those “targeted regulations of abortion providers,” or TRAP laws, halted by Zhang include the requirement that patients wait 72 hours between initial consultation and the procedure.
But Zhang upheld a requirement that the same physician who initially sees a patient must also be the one to perform the procedure and a requirement that only physicians, not physicians assistants or advanced practice registered nurses, perform abortions. Most critically, she upheld the state licensing requirement, leaving Planned Parenthood in limbo and unable to provide abortion services.
In a statement following the decision, Planned Parenthood leaders celebrated the decision to block several restrictions. Still, they said, “the practical effect of the decision is that no health center in the state can restart abortion services.” That’s because none of the facilities have an abortion license and leaders doubted the ability to get a license under current requirements.
In response, Planned Parenthood asked Zhang to reconsider the decision earlier this month.
“Missouri has decided that even if you provide a single medication abortion, you provide one pill to a patient, you now become an abortion facility,” Richard Muniz, Planned Parenthood Great Rivers interim president and CEO, told St. Louis Public Radio. “You have to have a license, and you have to meet all of the regulations that come with that license, and that is just not the case for even really invasive, complicated surgeries. For some reason, the state singles out abortion.”
Planned Parenthood leaders had previously hoped to provide abortions in Kansas City, Columbia and St. Louis as soon as the day following an injunction.
