KANSAS CITY, Mo. _ A federal judge said Monday he will consider whether to temporarily block parts of Missouri's new abortion law, including a ban on abortions after eight weeks of pregnancy, from going into effect.
In a hearing at the U.S. District Court of the Western District of Missouri's Kansas City courthouse, Judge Howard Sachs said he will make a decision Tuesday morning, the day before the law is set to be implemented.
The legal challenge was filed July 30 by the Planned Parenthood division that runs Missouri's sole abortion clinic in St. Louis. It asked Sachs to issue a temporary restraining order or preliminary injunction.
The Missouri law, signed by Gov. Mike Parson in May, not only criminalizes abortions after eight weeks of pregnancy, but also includes provisions that would prohibit abortions after 14, 18 and 20 weeks of pregnancy if the earlier bans are found unconstitutional.
The law does make an exception for medical emergencies, but not for victims of rape or incest. Doctors who perform abortions after eight weeks face five to 15 years in prison.
Planned Parenthood is challenging the bans based on gestational age, as well as the prohibition on abortions for reasons of sex, race or diagnosis of Down syndrome.
Sachs said he had a draft decision ready to sign Tuesday morning and would further consider each side's arguments overnight.
Claudia Hammerman, an attorney representing Planned Parenthood, argued at the hearing that precedent set at the U.S. Supreme Court and the 8th U.S. Circuit Court of Appeals made Missouri's law unconstitutional.
She claimed the law contradicts the 1992 Supreme Court ruling that a state can't prohibit a woman from terminating her pregnancy before viability. A fetus can't survive outside of its mother's womb at eight weeks, 14 weeks, 18 weeks or 20 weeks, a fact the state did not contest, she said.
Missouri is part of the 8th Circuit, which has invalidated similar laws in Arkansas and North Dakota.
"(The 8th Circuit) acknowledged that only the Supreme Court could revisit that jurisprudence," Hammerman said.
The state, represented by Missouri Solicitor General John Sauer, argued that a patient, not an abortion provider, only had standing to bring suit. He has asked Sachs to dismiss the case.
He called Hammerman's citation of the 1992 court ruling an "extreme overreading." He noted the ruling in Planned Parenthood v. Casey was meant to "relax" the stricter legal review requirements posed in Roe v. Wade almost 20 years prior.
During arguments, Sachs said Hammerman would most likely "succeed on the merits" of her argument concerning Supreme Court precedent.
His questions mostly consisted of inquiring how much harm would be caused if a preliminary injunction was not placed on the so-called "reason ban," or the law's prohibition on abortions for reasons of sex, race or diagnosis of Down syndrome.
He wondered how many patients, or what fraction of patients, especially in the next few months, would likely seek abortions for those reasons.
"I'm somewhat concerned if it's a realistic likelihood that a preliminary injunction is needed for that purpose," Sachs said.
Hammerman said she couldn't answer as to the probability of a patient walking into the clinic the next day seeking an abortion based on those reasons.
However, she posited in the meantime, doctors were exposed to "unjustifiable risk" and could be held liable if a patient asks them the sex of the fetus during an ultrasound and then chooses to have abortion.
"It's unclear how (the physicians) could protect themselves from the state," Hammerman said. "... the state has made it clear they are going to prosecute."
In Missouri, the attorney general has the power to criminally prosecute abortion-related offenses.
Along with state officials and the state health agency, Planned Parenthood also sued the circuit attorney for the city of St. Louis, Kim Gardner, in her capacity to enforce the state law.
In a memo filed with the court, Gardner said she supported Sachs granting a preliminary injunction, given the law's "apparent conflict" with Supreme Court precedent and the "potential chilling effect on the reproductive health services of women in Missouri."
Planned Parenthood was backed by attorneys with the Planned Parenthood Federation of America, the national and Missouri chapters of the American Civil Liberties Union, the Kansas City law office of Arthur Benson, and New York law firm Paul, Weiss, Rifkind, Wharton & Garrison.
Even if Sachs issues a preliminary injunction Tuesday, other parts of Missouri's abortion law will be implemented Aug. 28. That includes doubling the amount of medical malpractice insurance an abortion provider is required to have and mandating physicians who perform medication abortions to have "tail insurance," which continues to cover them after they've retired or changed employers.
A provision requiring minors seeking abortions to notify both custodial parents was implemented upon Parson's signature in May.
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