A new Missouri state law that may directly affect only a handful of medical facilities could potentially have a ripple effect and indirectly influence access to abortions all over the country.
Anything that makes it harder is getting copycatted all over the place, says Chicago attorney Scott Becker, a partner and co-chairman of the healthcare practice for the national law firm McGuireWoods, which publishes a magazine and newsletter on issues concerning ambulatory surgery centers. If the same policy is adopted in a certificate-of-need state, that would make it impossible to open this type of provider (facility). Its a tool that other states could pick to make it harder to open an abortion clinic.
Although it was scheduled to go in effect late this past summer, enforcement of a Missouri law that subjects abortion clinics to the same standards as ASCs has been postponed after U.S. District Judge Ortrie Smith in Kansas City, Mo., issued a temporary injunction that had been requested by Planned Parenthood of Kansas and Mid-Missouri and physician Allen Palmer of Bridgeton, Mo. Motions sought by the Missouri Department of Health and Senior Services declaring that Palmer and Planned Parenthood lacked standing to pursue the injunction were also denied.
In a September ruling, Smith gave Planned Parenthood and Palmer 30 days to seek waivers from specific requirements of the legislationwhich was scheduled to go in effect Aug. 28and then 30 days for the health department to respond. A subsequent hearing date has not yet been scheduled.
The waivers, however, deal with construction issues and their economic hardships. What Smith did not rule on and what may have more legal impact is whether the law applies to the Planned Parenthood facility in Kansas City. The facility, known as the Midtown Patricia Brous Center, provided surgical abortions from 1975 to 1988, but has only provided abortions via medication since 2005.
This court is not equipped to evaluate the added health and safety benefits to be derived from specific construction requirements, Smith wrote. He added that: The acts application to medication abortions likely violates both the due process and equal protection clauses of the U.S. Constitution, and that the health departments arguments in favor of requiring facilities where medication abortions are provided to be subject to the same standards as surgical facilities have not been terribly persuasive.
Other arguments pertaining to access include the fact that the two Planned Parenthood facilities are the only places in the state where abortions are performed outside of the St. Louis metropolitan area.
Palmers facility, called Womens Care Gynecology, is in St. Louis County.
Planned Parenthood Public Affairs Manager Michelle Trupiano says the economic hardships being imposed are severe. To remodel Planned Parenthoods Kansas City clinic to meet ASC standards would cost between $550,000 and $650,000 alone, Trupiano says, and this almost matches the centers annual operating budget of $700,000.
She adds that Palmer has estimated that meeting the laws requirements would cost him $1 million in construction and lost business expenses.
Trupiano says Planned Parenthood expects to comply with the judges order to submit its waiver requests in the next 30 days and then it will wait for the states response, but in the meantime, it will be business as usual.
Were going on as we have for the past 30 years, she says.
The Missouri Department of Health and Senior Services downplayed the law's significance for the state in particular, but acknowledged its potential to set a national precedent or create a model for other states to follow.
DHSS Section Administrator for Health Standards and Licensure Dean Linneman described the measure as simply a change in the state's definition of "ambulatory surgery center" to include standards for abortion providers, but he said he expects others will be watching to see how this situation plays out.
"Will other states look at the process we went through? I would imagine so," he said. "States try to avoid reinventing the wheel, and so I could imagine they would look at our legislation and they may try to duplicate it, or improve it, or avoid it altogether."
Linneman added that the intent of the law is not to take away the opportunity to select or provide an abortion, but rather to protect the health of women especially in cases where abortions may result in health-threatening complicationsand this includes non-surgical procedures.
"There are instances where those can go awry, and - any opportunity we have to protect a woman's safety in such instances - is something we have to consider," Linneman said.
The law was signed by Gov. Matt Blunt on July 6 and is supported by health department Director Jane Drummond. Drummond has been critical of having Missouri Attorney General Jay Nixon act as the states lawyer in this case, and announced that she has found outside pro bono counsel who will represent her department because Nixons radically pro-abortion views are in contrast with a very pro-life law.
How odd. You seek to represent me but decide that a motion by the plaintiff Planned Parenthood against my departments interest is one you can support, Drummond wrote in an Aug. 27 letter to Nixon. This strikes me as just the kind of collaboration with Planned Parenthood that further indicates that you have a conflict of interest in this case.
A representative from Nixons office was unavailable for comment. The Missouri State Medical Association declined to comment.
John Lantos, M.D., who serves as the John B. Francis Chairman in Bioethics at the Kansas City-based Center for Practical Bioethics, says that society has a right to regulate both reproductive and medical care, but how this is done will always be controversial.
The fact that we are struggling with this is a good thing, Lantos writes in an e-mail to Modern Physician. These laws should be examined to see if they make sense on their own termsprotecting the health of the women who are pregnant, rather than whether they are simply disguised ways of making abortion more difficult.
Bill Bondeson, a professor of philosophy and medicine, who teaches medical ethics at the University of Missouri at Columbia, thinks the intent of the law is obvious.
I dont think it was done to make it safer or for clinics to be prepared in case of an emergency, he says. What it is is just another hurdle to overcome. How many roadblocks can you put up before you make it impossible?