Missouri still without abortion access 12 weeks after vote. What's behind the holdup?

KANSAS CITY, Mo. — After voters struck down Missouri’s abortion ban 12 weeks ago, legal access still hasn’t returned. Most of the state’s restrictions have been blocked, but abortion providers say it’s not enough to again offer services.

They will try again in a Kansas City courtroom on Friday.

Comprehensive Health of Planned Parenthood Great Plains and Planned Parenthood Great Rivers-Missouri are asking Jackson County Circuit Court Judge Jerri Zhang to reconsider her December ruling that halted enforcement of several Missouri abortion restrictions – but left in place a licensing requirement for abortion clinics.

The looming courtroom showdown marks the most significant legal development in over a month in the fight to restore abortion access in Missouri after voters approved Amendment 3. And it comes as Republican lawmakers eye measures to soften or undo November’s landmark vote enshrining abortion rights in the state constitution.

Zhang ruled last month that Missouri can no longer require patients to wait 72 hours between seeing a doctor and having an abortion. Doctors also no longer have to be physically present when a patient takes medication for an abortion.

But abortion facilities must continue to hold licenses, a major stumbling block to restoring access. Providers say the licensing requirements include a pelvic exam of all patients, even those receiving medication abortion, and “strict hospital-like physical requirements” that most health centers or doctors’ offices don’t meet, among other rules.

The Missouri Department of Health and Services has the power to issue — and potentially deny — facilities licenses to perform abortions. Republican Gov. Mike Kehoe, a staunch abortion opponent, oversees the agency after taking office earlier this month.

“The point of Amendment 3 is to put reproductive care and the provision of abortion care on the same footing as other types of health care,” Emily Wales, CEO of Comprehensive Health of Planned Parenthood Great Plains, said in an interview on Monday.

“So anything that requires us to go through additional hurdles, additional oversight – we’ve seen the state delay and deny the licensure of abortion facilities,” Wales said. “So we shouldn’t have to go through unnecessary measures. We should be treated like every other type of health care provider and that is exactly what the licensure process does not do.”

Abortion rights supporters had hoped in December that Zhang would deliver a sweeping decision clearing the way for legal abortion after voters approved Amendment 3, with 51.6% in favor to 48.4% opposed. Still, Wales and others had warned before the election that restoring access could take months in court.

Amendment 3 marked the culmination of a two-year effort to end Missouri’s ban that began in the wake of the U.S. Supreme Court decision in June 2022 overturning the federal right to abortion and allowing the state ban to take effect. Missouri became the first state since the Supreme Court decision where voters had ended a ban.

Fighting license rules

Resuming legal abortions in practice has proven difficult.

While Zhang, a 2021 appointee of former Republican Gov. Mike Parson, granted a preliminary injunction against many of the state’s restrictions, her decision to leave the license rules in place disappointed providers prepared to immediately begin offering medication abortions in Kansas City and elsewhere in the state.

In her decision, the judge wrote that those requirements dealt with the actual licensure of the facilities “rather than the rights of individuals seeking reproductive care.” She wrote that the government may have a compelling interest in licensing the facilities.

The Planned Parenthood providers in late December filed a motion for reconsideration, essentially asking Zhang to reverse her earlier ruling. The licensure requirements are unconstitutionally discriminatory and interfere with or delay patients’ right to reproductive freedom, the providers say in their filing.

Amendment 3 says the government “shall not deny or infringe upon” the fundamental right to reproductive freedom and that government “shall not discriminate against persons providing or obtaining reproductive health care” or those helping others do so.

Planned Parenthood has said in statements and court filings that it cannot provide abortions unless the licensure requirement is blocked.

“Without this requested relief, Plaintiffs remain unable to provide abortions of any form,” lawyers for Planned Parenthood wrote in the December motion.

Missouri Attorney General Andrew Bailey, a Republican, has been fighting to uphold the licensure rules – and other restrictions – in court. His office will urge Zhang not to reverse her prior decision during Friday’s hearing.

A top Bailey aide, Missouri Solicitor General Josh Divine, argued in a January court filing that Planned Parenthood is asking Zhang to reverse “commonsense regulations” and that abortion providers can seek waivers for requirements they oppose.

“Planned Parenthood has yet to request any waivers,” Divine wrote. “Planned Parenthood cannot run to court—much less on a noncognizable motion for rehearing— when they do not yet even know whether they will be subject to various requirements.”

Divine also objects to Planned Parenthood’s opposition to pelvic exams, writing that they are part of a routine physical exam commonly performed at a first prenatal care visit.

Planned Parenthood responded last week. Nothing in Divine’s court documents alters the fact that the licensing requirement “singles out abortion facilities for differential treatment without any basis in patient health,” lawyers for abortion providers wrote in a court filing.

While Zhang could rule from the bench on Friday, she could also issue a written decision, a process that could take weeks. Last month, 16 days passed between a hearing and her order.

Republican efforts continue

In the meantime, the Republican-controlled General Assembly will likely push forward on efforts to partially or entirely overturn Amendment 3.

A raft of constitutional amendments that would reduce or eliminate the abortion rights guaranteed under Amendment 3 have been introduced. It’s unclear exactly how far GOP lawmakers are willing to go, but top Republicans are under significant pressure to do something.

Missouri House Speaker Jonathan Patterson, a Lee’s Summit Republican, told journalists last week that lawmakers are attempting to develop a plan that makes Missouri “the most pro-life state it can be” while recognizing the November vote.

The state legislature cannot unilaterally alter the constitution. If the House and Senate approve an amendment, it would go to a statewide vote. Kehoe wouldn’t have a role in signing or vetoing the measure but would have authority over the timing of the election.

Patterson said discussions are ongoing among lawmakers.

“So again, it recognizes that the voters spoke and that whatever we do has to go back to all the voters,” Patterson said, describing broadly the proposal lawmakers are seeking. “And it’s hard because we want to make it as pro-life as possible, but I don’t think the voters would pass a repeal. So we have to find something that is in between.”

Any Republican-led plan to soften Amendment 3 will face a certain Democratic filibuster in the Missouri Senate. Senators are able to speak without time limits in the chamber, but the Senate can vote to end debate – a polarizing and rarely taken step that would likely come in the final days or hours of the legislative session.

“We’re gonna hold up the will of the people on that one,” Senate Minority Leader Doug Beck, a St. Louis County Democrat, said last week.

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(The Star’s Kacen Bayless contributed reporting.)

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