(Updated 5:37 p.m. EDT, Monday, Sept. 24)
A high-profile court battle over a new Missouri abortion law has fixed a national spotlight on arcane health regulations in at least 28 states that critics have long argued could put abortion doctors out of business. In the case, Planned Parenthood of Kansas and Mid-Missouri Inc. v. Jane Drummond, two abortion clinics and a St. Louis doctor argued the Missouri law – signed by Republican Gov. Matt Blunt in July – would require expensive building renovations that would put them out of business, leaving only one abortion provider in the state.
On Monday, (Sept. 24), a federal judge blocked the law and ordered the abortion providers and the state Department of Health and Senior Services to come up with modified rules that would allow the facilities to keep their doors open. If the process fails, the case will go back to the court for a final decision.
Laws like Missouri’s – regulating everything from the size of doors, hallways and windows to the height of ceilings and choice of furnishings and landscaping – are needed, supporters say, to ensure the health and safety of women. Wider hallways, for example, allow for the passage of gurneys and other medical equipment.
Typically, these laws – which vary widely from state to state – don’t draw much notice.
“People don’t pay attention to them. But in a lot of ways – the steady chipping away and the insidious nature of these laws is very real and more threatening than some of the South Dakota-style ban legislation,” said Katherine Grainger of abortion rights advocates Center for Reproductive Rights.
The health rules are called Targeted Regulations of Abortion Providers (TRAP) by abortion rights activists, who say the statutes and administrative rules are aimed at reducing the number of abortions by raising operating costs and forcing some clinics to shut down.
But an attorney defending the Missouri law said the rules are solely intended to protect the health and safety of women and force abortion clinics to follow the same health codes applied to other medical outpatient facilities.
“To exempt abortion clinics from these regulations would make abortion even more dangerous than it already is,” said attorney Dale Schowengerdt of the
Alliance Defense Fund, an Arizona-based anti-abortion legal action group involved in the case. While Schowengerdt acknowledged most supporters of such rules are opposed to abortion, he said the laws are not designed to create a barrier to abortion.
The politics behind Missouri’s new law were clear when health department director Jane Drummond told Attorney General Jay Nixon she was not comfortable having him represent her in the case. “As you have been an outspoken proponent of abortion on demand and political ally of Planned Parenthood,” she wrote in an Aug. 22 letter, “I did not believe I could trust you to defend me and my department vigorously.”
Drummond, who is named in the case, asked Alliance Defense Fund to represent her, and state attorneys are representing Nixon, who is also named in the case. The Alliance Defense Fund is a legal advocacy group founded in 1993 by James Dobson's Focus on the Family and about 30 other conservative Christian evangelical ministries.
Calling the case a “political circus,” Bonnie Scott Jones of the Center for Reproductive Rights said the regulations have nothing to do with protecting women’s health. “There is nothing wrong with the standard of care in these clinics,” said Jones, who represents St. Louis gynecologist Dr. Allen Palmer.
While other states have laws regulating abortion clinics, “the Missouri law is much worse,” Jones said, because it calls for immediate and extensive physical plant renovations and includes all clinics, even those like Dr. Palmer's that provide only first trimester medical abortions. Most other state laws cover only new clinics or allow the upgrades to be made over time, she said.
Still, health codes in many states are considered onerous and unnecessary, Grainger said. She cited one such regulation in South Carolina that requires abortion clinic operators to properly maintain their landscaping by eliminating all insects from the shrubbery.
So-called TRAP laws have been challenged in federal courts in the past. In two cases, courts have said the state had a legitimate interest in imposing health regulations on abortion clinics and ruled the laws did not run afoul of the landmark U.S. Supreme Court decision, Roe v. Wade, which guarantees a woman’s right to an abortion.
But in a 2005 Mississippi case, where a new abortion law meant the likely shutdown of the state's only abortion clinic, U.S. District Judge Tom S. Lee rejected the law saying it "was just another example of anti-choice politicians professing to protect women's health while relentlessly passing legislation that cuts off their access to health care services," according to a report by the Associated Press.
States with TRAP laws that apply to procedures in all stages of pregnancy include: Alabama, Arkansas, California, Connecticut, Florida, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Oklahoma, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin, according to the Center for Reproductive Rights.
States that regulate only clinics providing abortions after the first trimester of pregnancy include: Alaska, Arkansas, Georgia, Hawaii, Indiana, Minnesota, Mississippi, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Dakota, Utah and Virginia, according to the center.
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Contact Christine Vestal at cvestal@stateline.org.
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