KANSAS CITY, Mo. — Just a few hours after passing Missouri constitutional Amendment 3, abortion industry lawyers filed a lawsuit in Kansas City, asserting their new fundamental right to make money by providing abortions in Missouri.
Confident that the investment of $30.9 million would buy them a simple majority victory (as it did, with 51.6% of the vote), Planned Parenthood lawyers spent massive hours before the election drafting their pleadings, and they promptly filed court papers asking the judge to enforce the new amendment by striking down certain abortion laws, even before Amendment 3 becomes legally effective on Dec. 5.
Planned Parenthood officials have promised that, if the judge temporarily enjoins several abortion statutes, Planned Parenthood will promptly resume medical and procedural abortions in three Missouri clinics: namely, in Columbia, the Central West End in St. Louis, and the Midtown neighborhood of Kansas City.
They had a short night to celebrate their victory – and then the race to the courthouse so they could get back in the business of selling abortions as soon as possible.
On Nov. 6 at 11:26 a.m., attorneys for Planned Parenthood and the American Civil Liberties Union (ACLU) (including its New York City office), filed a 221-page pleading that consisted of a 95-page Petition for Injunctive and Declaratory Relief, and a 121-page Motion for Preliminary Injunction.
Planned Parenthood sued several state officials to prevent them from enforcing abortion restrictions while the lawsuit is pending. Planned Parenthood asks that, at the close of the case, the court would declare the statutes to be unconstitutional in light of Amendment 3.
Among the named defendants are The State of Missouri; Governor Mike Parson (who will be succeeded by Mike Kehoe in January); Attorney General Andrew Bailey; and several administrative agencies and their directors (Division of Health and Human Services; the Board of Registration for the Healing Arts, and the Board of Nursing.)
The last-named defendant is Jackson County Prosecuting Attorney Jean Peters Baker, who will be succeeded in January by newly elected prosecutor Melissa Johnson.
Naming the Kansas City prosecutor as a defendant enabled the abortionists to get the venue in Kansas City, which some view as a more friendly forum than the courtroom in Cole County/Jefferson City. (A Cole County Judge ruled against Planned Parenthood in a pre-election challenge to Amendment 3 in September.)
Planned Parenthood also is seeking to certify the case as a class action, naming the Kansas City prosecutor as the representative of all Missouri prosecutors.
The case was randomly assigned to Kansas City Judge Jerri J. Zhang in Division 3, Jackson County Circuit Court. Judge Zhang was appointed by Gov. Mike Parson in 2021.
Judge Zhang has scheduled a hearing on the Motion for Preliminary Injunction on Dec. 4, 2024, at 1:30 pm. Division 3 courtroom is on the 5th floor of the County Courthouse in downtown Kansas City. This will be a pivotal hearing on whether abortions will resume the next day, Dec. 5.
The lawsuit first challenges several state statutes which contain abortion bans that are allegedly unconstitutional under the “Right to Reproductive Freedom Initiative,” or Amendment 3, including:
- a total ban on abortion, § 188.017, RSMo;
- cascading gestational age bans on abortion, §§ 188.056, 188.057, 188.058, and 188.375, RSMo; and
- bans on abortions for certain reasons, §§ 188.038, 188.052, RSMo; 19 C.S.R. § 10-15.010(1).
The lawsuit states: “These bans flatly ‘deny or infringe upon a person’s fundamental right to reproductive freedom,’” which includes “the right to make and carry out decisions about . . . abortion,” by taking this decision away altogether. Mo. Const. art. I, § 36.2. “Because they are wholly out of step with the Constitution’s new guarantees, they must be declared unconstitutional and preliminarily and permanently enjoined.”
The lawsuit also challenges a series of “targeted regulation of abortion providers”, or “TRAP” laws, passed by the Missouri legislature in recent years. Among the TRAP laws targeted by the new lawsuit are the following:
- Requirements that abortion clinics be licensed as ambulatory surgical centers.
- A 72-hour waiting period between a patient’s initial visit with a doctor and their abortion procedure.
- Mandates that abortion clinics be located within 30 miles of a hospital where they have admitting privileges.
- The required submission of all tissue removed during an abortion be submitted to a pathologist.
- Rules requiring abortion providers to report all abortions and abortion complications to the state.
- Requirements that the same physician who initially sees a patient must also be the physician who performs the abortion procedure.
- Current law requiring that only physicians can perform abortions, excluding physician assistants and advanced practice registered nurses.
The lawsuit describes these TRAP laws as “a web of impenetrable, onerous, and medically unnecessary restrictions targeted at abortion providers,” that limited access for Missourians for years prior to the state’s abortion ban, which took effect when the Dobbs decision reversed Roe v Wade in 2022.
The lawsuit also addresses access to medication abortion, asking that a judge lift the current restrictions that would make it difficult to prescribe abortion drugs. This includes a telemedicine ban that requires the physician who prescribes the medication to also be in the room when the patient takes the first dose of mifepristone, which induces the abortion (killing the baby). The second drug, misoprostol, is taken later to expel the pregnancy. Complications – such as severe bleeding, incomplete abortion or infection can occur – but Planned Parenthood argues that self-medication is safe and does not need a doctor’s presence. (The lawsuit uses the term “procedural abortion” instead of “surgical abortions,” arguing that abortion requires no incisions, so it is not surgery; it’s just a safe and simple procedure.)
The Petition also seeks to end criminal penalties for an abortion provider who performs an abortion without a medical emergency. Doctors may risk loss of their license and up to 15 years in prison for violations.
The lawsuit does not challenge Missouri’s current laws requiring parental consent for minors seeking abortions. A Planned Parenthood executive did not specifically say whether this will be challenged in the future, but rather noted this is only the first lawsuit. Challenges to various other statutes that regulate “reproductive healthcare” may come later, when the courts will have to interpret the scope of the “fundamental right to reproductive freedom.”
Court challenges can take months, if not years. Ohio citizens voted to protect abortion rights one year ago, but only recently did a county judge just strike down that state’s “heartbeat” law.
Missouri lawmakers, including state Sen. Mary Elizabeth Coleman and U.S. Sen. Josh Hawley, have said they intend to give Missourians the opportunity to vote on abortion again.
Hawley, who was re-elected to a second term on Nov. 5, was among a number of senators who signed a letter in 2023 asking the U.S. Attorney General to enforce the Comstock Act and make illegal the mailing of abortion medication, which has increasingly become popular and accessible across the United States over the last two years.
On the Wednesday morning after the election, Mary Catherine Martin, an attorney with the Thomas More Society who previously argued against the amendment before the Missouri Supreme Court, promised to defend Missouri against Amendment 3.
Several Missouri legislators are also discussing a plan whereby a simple majority of the House and the Senate could pass a joint resolution, putting on a future ballot a measure to repeal and/or replace Amendment 3. The joint resolution would not require the governor’s signature, and it would avoid the time and expense of an initiative petition drive, with signature gathering and other costs.
State Rep. Jon Patterson (Dist. 30), a Lee’s Summit Republican, is expected to become House speaker when the state legislature returns in January. Before election day, he said he didn’t support Amendment 3. But if it won, he said, the legislature should respect the voters’ decision. “It will be the law of the land,” he said at a Lee’s Summit Chamber candidate forum. “And we have to go forward as the people decide.”
After the election, Rep. Justin Sparks of Wildwood announced he will mount a long-shot campaign to block Patterson as speaker because of Patterson’s comments opposing a future vote to repeal or replace Amendment 3.
A decade ago, more than 5,000 abortions were performed in Missouri, according to the health department. By 2020, that number dropped to 167 as a result of the TRAP laws. Between June 24, 2022, and July 31, 2024, 74 abortions were performed in Missouri under the state’s emergency exemption, according to data from the Missouri Department of Health and Senior Services.
The Jackson County lawsuit case is named: Comprehensive Health of Planned Parenthood Great Plains and Planned Parenthood Great Rivers-Missouri versus The State of Missouri, et al. The case number is 2416-CV31931. A link to the Petition and Motion for Injunction can be accessed here.
___
This story was first published in The Pathway.
