Voters in November passed Amendment 3, which placed the right to have an abortion in the Missouri Constitution. But the ballot initiative’s approval at the polls marked the beginning of another legal dispute over abortion access.
St. Louis Public Radio editor Brian Moline spoke with health reporter Sarah Fentem about why patients still can’t get an abortion in Missouri even after the passage of Amendment 3:
Brian Moline: Missouri voted to approve the right to an abortion in the state, but it's still not available. So what's the holdup?
Sarah Fentem: So first, some background. Amendment 3 gave Missourians the constitutional right to an abortion, and when voters passed that in November, I think a lot of people thought the next day you could probably walk into a clinic and get an abortion. But as we've seen, that's not the case.
The initiative put the right to the abortion in the state constitution, but a judge still needed to overturn the ban. Two Planned Parenthood affiliates in the eastern and western parts of Missouri sued to overturn the ban, and then Jackson County Circuit Judge Jerri Zhang halted the ban shortly before Christmas.
But the judge left some other requirements that apply to abortion clinics in place. Planned Parenthood says with those requirements on the books, they still can't offer abortions yet.
Moline: What kind of regulations?
Fentem: In order to provide abortions, Missouri clinics need to adhere to certain rules to maintain a special provider license. Some of those license requirements are rules for the design of the facilities. The clinics need to have doorways that are “x-wide,” etc. And then there are clinical requirements.
For example, a clinic needs to confirm pregnancy with a lab test. Probably most controversially, providers need to give pelvic exams to patients who are seeking abortions. Planned Parenthood officials say it still can't provide abortions while those restrictions are on the books. They say the pelvic exam in particular isn’t ethical or medically necessary. So access right now is in a holding pattern.
Moline: So what happens next? Will Planned Parenthood challenge these bans?
Fentem: Planned Parenthood this week filed a motion asking Zhang to reconsider her December order — it’s called a “motion to reconsider.”
The plaintiffs argue that these licensing requirements violate a part of Amendment 3 that prohibits discrimination against abortion providers and patients. The motion argues that because other medical facilities in the state that offer similar procedures don't have those specific licensing requirements, the existing laws are unfairly singling out abortion providers and patients.
If the judge says “OK, you're right, I agree with you,” then clinics could begin providing abortions right away. But if she doesn't agree, it's less clear what Planned Parenthood's next step would be.
Moline: I keep hearing that the judge's order is temporary. What does that mean, exactly?
Fentem: Planned Parenthood has asked for a preliminary injunction, and that's when a judge keeps certain rights in place while other legal methods play out on a parallel track.
Zhang's order is a sort of placeholder until a larger trial takes place that would overturn the state's abortion ban, so that Amendment 3 could go into effect.
That could be later this year. But as we've seen previously with Amendment 3 litigation, it could be a rocky road.
