The Threat To Roe is Real and Coming Soon
The State of Missouri will likely push the abortion battle straight into the arms of a Supreme Court this fall that was handpicked by the Heritage Foundation and the Federalist Society.
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An 8th Circuit opinion on the Missouri abortion ban came down on Wednesday, which will likely set the stage for an epic Roe v. Wade battle at the Supreme Court level this fall. This intermediate court determined that Missouri's pre-viability abortion ban —and any pre-viability ban — is "categorically unconstitutional." You can expect the state of Missouri to appeal this latest District Court ruling and take the case to a newly minted conservative Supreme Court, that currently has three seats filled by Trump appointees.
The strategy employed by the Heritage Foundation and Federalist Society to place conservative judges on our highest court has come to fruition, and the result could be a SCOTUS majority willing to now place extreme restrictions on a woman’s right to chose. Below are two articles I previously published in SHERO in June of 2019, that explain the origins of this decades-long battle.
Missouri's Role in the Threat To Roe
(originally published in SHERO newsletter on June 2, 2019)
Missouri has had a recent flourish of activity surrounding abortion restrictions, but you should know that the state originated the initial restriction that led to the most destructive laws of the 2000s. Even though it seems like we are just hearing about all of these new laws for the first time, the anti-abortion game plan has been in the works from Conservative activists in the state for a long time. Missouri is a flagship state for effectuating abortion-limiting laws that have withstood court scrutiny and substantially helped to chip away at Roe v. Wade for decades.
So, what began with a false argument of “safety and protection for women,” turned into more laws seeking to destroy access to abortion through building regulations, hospital provider relationships, location requirements and reporting demands.
In 1986, the Missouri General Assembly passed a law making it a misdemeanor for physicians to perform abortions unless they had admitting privileges at a hospital within 30 miles. Missouri was the first state to enact this kind of restriction which argued that the law was not an undue burden to a woman because it sought to “protect” women.
The truth about this kind of law is that clinics would now have difficultly complying as the requirements would be too difficult to meet. It also became politically difficult for abortion doctors to get admitting privileges, as hospitals in the area had the authority to refuse to grant privilege for any reason.
The success of this law spurred on other restrictions on abortion in Missouri including a 72-hour waiting period, parental consent for minors, and tighter restrictions for insurance coverage. It’s important to note that Missouri is one of the many states to recently enact a version of a Heartbeat Bill (HB126) that limits abortion to the first eight weeks of pregnancy.
These Missouri restrictions sparked the beginning of laws throughout the 2000s that targeted restrictions on abortion providers called “TRAP” laws. TRAP laws sought to shut down abortion providers and make it more difficult for people to access abortion all under the faux premise of “protecting women.” They were fueled by a heavy Republican majority in statehouses all over America throughout the 2010s.
So, what began with a false argument of “safety and protection for women,” turned into more laws seeking to destroy access to abortion through building regulations, hospital provider relationships, location requirements, and reporting demands.
The Supreme Court struck down the Texas version of the admitting privileges law in Whole Woman’s Health v. Hellerstedt in 2016. The court found that unnecessary regulations requiring providers to obtain often unattainable admitting privileges and comply with prohibitively expensive building regulations constituted an “undue burden on [the] constitutional right” to abortion.
TRAP laws meant that many states experienced a substantial closure of abortion provider clinics while ongoing litigation slowly determined if the process was even legal — this was disastrous in terms of access. Missouri went from five abortion clinics in 2008 to only two in 2017.
By 2018, only one facility remained open as Planned Parenthood’s Columbia Health Center could no longer meet new state requirements and was forced to close. This left Missouri with only the St. Louis Planned Parenthood clinic who then joined Kentucky, Mississippi, North Dakota, South Dakota, and West Virginia as a state with only one clinic that performs abortions.
The latest attempt to close the last remaining open abortion clinic in St. Louis was made by the Missouri Department of Health when the state entity refused to renew the last clinic’s license, claiming they had failed to meet critical health standards. The state also ramped up political rhetoric by accusing Planned Parenthood of failing to properly complete abortions and claimed that women were leaving the clinic still pregnant after botched procedures.
The St. Louis clinic responded to the necessary changes demanded by the Missouri Department of Health but refused to comply with a request that the department interview all of its physicians, some of which are not Planned Parenthood employees but rather independent providers. Missouri DHS threatened to close the clinic and Planned Parenthood filed an emergency request for relief in the courts.
Missouri Circuit Judge Michael Stelzer granted the St. Louis Planned Parenthood clinic a temporary restraining order on May 31st, 2019, that enabled the clinic to remain open and temporarily continue to perform abortions. Judge Stelzer stated in his ruling that the clinic had demonstrated it would suffer “immediate and irreparable injury” if the license was forced to lapse.
Although this should be considered a critical victory, the issue is not formally resolved and the judge will be hearing arguments from both sides again on Tuesday morning to consider the merits of the case and make a permanent ruling.
St. Louis Abortion Clinic to Defy Regulation
St. Louis Planned Parenthood will no longer conduct invasive and unnecessary pelvic exams in accordance with new state policy
(originally published in the SHERO newsletter on June 20, 2019)
The Planned Parenthood in St. Louis is the last remaining abortion provider in the entire state of Missouri. On Wednesday, the clinic announced that it will stop complying with a state regulation requiring doctors to perform two pelvic exams on women seeking abortions.
Starting soon, doctors in Missouri will only perform pelvic exams when they find it medically necessary, which is typically when women go in for the abortion procedure itself rather than at an initial consultation.
Missouri state law requires women to have a pelvic exam 72 hours before receiving an abortion, but the new policy is now adding another pelvic exam before that one. Dr. Eisenberg, director for the St. Louis Planned Parenthood, has explained the reasoning for the new protocol and has likened the rule to assault:
“It is even more uncomfortable and awkward for women when they understand the reason it is being done is because the state is requiring it. [Patients] are being victimized by a state regulatory process that has gone awry. It is not making them healthier, it is not making them safer, it is only victimizing them. [For someone] who has been the victim of sexual assault, that exam can be miserably painful — physically, emotionally and psychologically. Over the last few weeks, I have new evidence to say that 100% of the patients, who I’ve taken care of, who’ve undergone this inappropriate, medically unnecessary, unethical pelvic exam have been harmed by that. Because to do so, in my opinion, is just assault.”
Other abortion providers in Missouri are also speaking out about the negative and often traumatizing reactions patients are having as a result of this extra pelvic exam requirement. Dr. Amy Addante explained recently in a tweet that she was “forced” to do an invasive exam that was “unnecessary” and also described her struggle with it as a medical provider.
Other medical professionals, including mental health practitioners like Dr. Jessi Gold, are also weighing in on the controversy and how the ramifications of the procedure are “triggering” and increase unnecessary trauma for patients. Given that the pelvic exam policy was just recently put into effect in Missouri, it could be argued that the health department created the regulation to punish women for seeking abortion services.
Rachel Maddow also compared the procedure to “state-sanctioned sexual assault,” asking about the motivation of a state government that would harm women, and wanted to know what benefit the state derives from invasive, unnecessary pelvic exams. (Click on the tweet link below or watch her video take on it here.)
This new pelvic exam policy announced last month by the Missouri Department of Health has been one of the many issues involved in the ongoing lawsuit Planned Parenthood filed concerning the clinic’s license renewal. Litigation is ongoing, but a judge previously issued injunctions that have allowed the clinic to stay open for the time being. That same judge has ordered that the state must decide by the end of the week to make a decision on whether to deny the clinic a license or to just let the license lapse.
If the license lapses, Planned Parenthood is not entitled to judicial review, but if the health department denies the license for a specific reason, then the clinic is able to challenge the state legally. This is likely the reason Planned Parenthood has made the decision to cease pelvic exams now - to force the issue to the courts, which have so far been favorable.
Planned Parenthood also defied a state law in Alabama outlawing nearly all abortions within the next six months in 2019. It then began construction on a 10,000 square foot facility for a women’s clinic in Birmingham, and the construction was completed by the time the ban went into effect. The purpose of the continued construction is to make sure the clinic opens on schedule, despite these challenges to the Alabama Abortion Ban in state court.
This latest 8th Circuit ruling from this week will now give the State of Missouri the chance it has worked for, by providing the opportunity for Missouri’s governor to appeal to the United States Supreme Court. It is likely that the Court will choose to hear this case in the fall, and considering the recent conservative additions to the distinguished panel, we could be facing historic limitations to abortion rights. Stay tuned.
Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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What we are seeing is the result of years of Republican stacking of the court system (and especially the Supreme Court, obviously). The Republicans set this train in motion long ago with the full knowledge that they would lose some initial battles but that they would ultimately win the war. Sadly, I think that Roe is more or less finished.
I’m lucky to a degree—I live in a blue state, but the Republicans have been very active in appointing far right judges in blue states, too. We saw the effects of that recently in California, where a Republican-appointed judge wiped out the state’s assault weapons ban. I’m now very concerned that a similarly-minded judge will find some contorted reason to wipe out abortion rights where I live, and make no listen, the anti-choice movement is not going to be satisfied with eliminating abortion in the red states. They’re going to come for it here, too.
what century is this? 70 y.o. and fought My entire Life for autonomy and look where we are. Where are the legions of female voters & those who support them? yes, the courts have been stacked against the rights of citizens, but I believe too many who SHOULD care, do not vote.