Federal Judge Temporarily Blocks Enforcement Of Missouri Law That Would Require Abortion Clinics To Upgrade Facilities

Main Category: Abortion
Also Included In: Women's Health / Gynecology;  Litigation / Medical Malpractice
Article Date: 28 Sep 2007 - 5:00 PDT

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U.S. District Judge Ortrie Smith on Monday issued an order that temporarily blocks enforcement of a Missouri law (SB 370) that would designate facilities performing second- or third-trimester abortions or more than five first-trimester abortions each month as "ambulatory surgical centers" so both sides can negotiate some of the law's provisions, the St. Louis Post-Dispatch reports (Mannies, St. Louis Post-Dispatch, 9/25).

Ambulatory surgical centers are subject to increased regulation from the state Department of Health and Senior Services. The law would require hallways at the facilities to be at least six feet wide and doors at least 44 inches wide. The clinics also must have separate male and female changing rooms for staff and a recovery room with space for a minimum of four beds with three feet of clearance around each bed. The health department has said the law requires that three clinics in the state be licensed.

Planned Parenthood of Kansas and Mid-Missouri last month filed a federal lawsuit alleging that the new regulations are unnecessary and are not meant to improve safety, but rather to interfere with a woman's constitutional right to abortion. Smith last month issued a temporary restraining order blocking implementation of the law, which was scheduled to take effect Aug. 28. Last week, Smith allowed physician Allen Palmer -- who operates the Women's Care Gynecology clinic in Bridgeton, Mo. -- to join the lawsuit (Kaiser Daily Women's Health Policy Report, 9/12).

According to Smith's order, PPKM and Palmer have 30 days to seek waivers from the health department on certain provisions of the law. State health officials then will have 30 days to respond, and if the two sides cannot reach a resolution, they will return to court, the Post-Dispatch reports (St. Louis Post-Dispatch, 9/25). Smith said the law could violate PPKM's constitutional rights if the health department adopts regulations so severe that it posed an undue burden on PPKM.

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"We've said from the beginning that we were more than willing to comply with licensing requirements as long as those requirements were reasonable and made some medical sense," Peter Brownlie, president of PPKM, said. He added that the health department has toned down its position in the course of the court hearings and now indicates a willingness to allow waivers as long as the department's "safety objectives" for women seeking abortions are assured.

Dale Schowengerdt, the health department's attorney, said he was pleased that the judge ruled that the law probably would not be found unconstitutional. The judge "ordered the parties to do what the department has wanted them to do, which is discuss how this law is going to apply to the plaintiffs and start implementing it," Schowengerdt said, adding that the "department has said that it will consider specific deviations if the facilities can show that they have an acceptable alternative that meets the department's goal of optimum patient health and safety" (Franey, Kansas City Star, 9/24). Missouri Gov. Matt Blunt (R), who signed the new restrictions into law, issued a statement generally praising Smith's order, the Post-Dispatch reports (St. Louis Post-Dispatch, 9/25).

NPR's "Morning Edition" on Monday reported on the Missouri law. The segment includes comments from Brownlie; Blunt; Pam Fichter, president of Missouri Right to Life; and Palmer (Lohr, "Morning Edition," NPR, 9/24). Audio of the segment is available online.

Reprinted with kind permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation© 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.