New Missouri abortion law could provide landmark court test

JEFFERSON CITY, Mo. -- Missouri has a long-established reputation as one of the nation's foremost pro-life states.

As evidence: the pro-choice group NARAL Pro-Choice America gives Missouri an "F." The pro-life group Americans United for Life had ranked Missouri the seventh-best nationally, until last year's voter approval of a stem-cell research amendment dropped the state in the group's rankings.

So it's probably not surprising that Missouri's abortion laws have frequently reached the U.S. Supreme Court -- sometimes being upheld, other times overturned.

Now Missouri could be poised to again test judicial precedent with its abortion laws.

A measure set to take effect Aug. 28 will require any medical clinic performing more than five first-trimester abortions a month, or any abortions later in pregnancy, to be licensed as an "ambulatory surgical center."

That means abortion clinics will be subject to a wide range of state health department regulations governing their personnel, equipment, cleanliness and the physical characteristics of their facilities. Missouri's existing regulations for outpatient surgery centers even set such things as minimum hallway widths and parking lot spaces.

Planned Parenthood of Kansas and Mid-Missouri claims it could cost up to $2 million to renovate its Columbia clinic to comply with the new law. The alternative is to stop offering abortions there, leaving a St. Louis clinic as Planned Parenthood's only site for surgical abortions in the state.

Supporters of the new law say it is intended to ensure the health and safety of women, an assertion disputed by opponents.

Historical context

This is not the first time Missouri has tried to restrict where abortions can be performed.

On June 15, 1983, the U.S. Supreme Court struck down a Missouri law that required abortions after 12 weeks of pregnancy to be performed in hospitals.

The court said the Missouri law -- like a similar Akron, Ohio, ordinance it struck down the same day -- unreasonably infringed on a woman's constitutional right to abortion. In the Ohio case, which served as the lead opinion, the Supreme Court said the hospital abortion requirement burdened women financially, potentially costing them twice as much money as would an outpatient clinic.

But the Supreme Court left the door open for further regulation. It upheld a Virginia law that required second-trimester abortions to be performed either at traditional hospitals or outpatient hospitals, the description of which generally matches that of an ambulatory surgical center.

After the Supreme Court loss, Missouri lawmakers in 1986 tried again to limit where abortions could be performed. That law required any abortion at the 16th week of pregnancy or later to occur in a hospital.

But the 8th U.S. Circuit Court of Appeals, citing the precedent established five years earlier, ruled in July 1988 that the 16th-week hospital requirement was little different than the 12th-week requirement.

A new approach

Missouri's latest attempt to restrict the location of abortions takes a different approach. It follows the Virginia law by limiting abortions to both hospitals and clinics licensed as outpatient surgical centers. But it goes further by applying that limitation to clinics that provide even just a few first-trimester abortions, not only those that perform later abortions.

It's that latter part that makes Missouri's law a first-of-its kind, according to NARAL attorneys who track state abortion laws.

Under its Roe v. Wade precedent, the Supreme Court has generally maintained that the right to abortion is strongest in the first trimester, said Carl Tobias, a law professor at the University of Richmond in Virginia. Yet the court has allowed states to impose requirements on abortions at any fetus age, so long as they are not unduly burdensome.

"It could be that a court would find this to be an undue burden because of the first trimester aspect of this," Tobias said, "but it's not at all clear."

Mixed reactions

Planned Parenthood "is looking very carefully at these issues" as it weighs whether to sue before the law takes effect, said Arthur Benson, an attorney for the organization.

NARAL's legal director, Cathy Mahoney, called the regulatory reach into first-trimester abortion clinics an extreme step.

"These kinds of restrictions can largely make that right [to abortion] unattainable -- if not legally, practically speaking," Mahoney said.

Spokespeople for Missouri Right to Life and Americans United for Life said their legal experts weren't available to talk about Missouri's law. But Missouri's apparently unique approach doesn't necessarily put it on shaky ground, said Right to Life lobbyist Susan Klein.

"Just because no other state has done it does not mean this is not good legislation. We believe it's excellent legislation," Klein said. "Abortion has risks with it, and the Department of Health should be able to come in and have a say so in how women are taken care of."