Battle over abortion law set for court

U.S. District Judge to conduct a preliminary injunction hearing on Wednesday.
Sunday, October 5, 2003 | 12:00 a.m. CDT; updated 12:33 p.m. CDT, Thursday, July 10, 2008

Missouri’s abortion rights advocates hope their lawsuit to overturn a new 24-hour waiting period for abortions will follow recent successful cases in other states.

Groups such as Planned Parenthood have successfully challenged 24-hour waiting periods in four states when courts ruled that such requirements were irrelevant or unconstitutional.

But courts in at least 11 states have let such laws stand. Fewer than half the legal challenges of state laws which requiresa waiting period for women seeking abortions have ended favorably for abortion-rights advocates.

Missouri’s new abortion law, which is set to go into effect Saturday, would require women to wait 24 hours after mandatory counseling by a physician about the risks of having an abortion before they could undergo the procedure.

Attorneys for Planned Parenthood requested an injunction against the law and filed a federal lawsuit against the law Friday. The suit claims Missouri’s new law contains “vague and unintelligible” phrases that could incriminate abortion providers without their knowledge.

“A good example is a requirement for physicians to evaluate their patients for ‘indicators, risk factors and situational factors,’” said Peter Brownlie, president and CEO of Planned Parenthood of Kansas and Mid-Missouri. “What’s a ‘situational factor?’ The language is exceedingly broad and almost impossible to understand.”

Rep. Susan C. Phillips, R-Kansas City, sponsored the original House bill. She said she thinks the law is fair as written.

“I don’t think it’s vague at all,” Phillips said. “What the doctors tell women will vary based on their medical history. There’s no way people can predict the future, but doctors will have to exercise their best judgment about how an abortion is going to affect the woman’s health.”

Brownlie said he is concerned with the law’s interpretation and enforcement.

“This is a criminal statute that requires physicians to comply with this law and face jail time if you can’t understand what the law requires,” Brownlie said.

Penalties for violating the law include fines of up to $5,000, imprisonment of up to one year and the loss of the doctor’s medical license. Phillips said the law would be enforced under Missouri’s malpractice statute and that often it would be women who received inadequate information to report suspected violations.

“If anything, this law would protect abortion practitioners because the women sign a form acknowledging they are satisfied with the information they received,” Phillips said.

U.S. District Judge Scott Wright in Kansas City will handle the suit.

A preliminary injunction hearing will take place Wednesday via telephone, said Arthur Benson, attorney for Planned Parenthood and its affiliates.

During Wednesday’s hearing, Wright will consider whether the new law would cause “irreparable harm.” Brownlie said the 24-hour waiting period would meet that standard.

“The irreparable harm is in the interference of a woman’s constitutional right to have an abortion without undue burden,” Brownlie said.

No matter how Wright rules, the fight over abortion laws is likely to continue.

Brownlie said he assumes Planned Parenthood’s lawyers will appeal a decision that upholds the state’s law. If the law is overturned, Phillips said she would consider modifying the law to try to pass it again.

If the federal court grants an injunction, the law will be postponed until the outcome of the federal lawsuit is decided.

If the court does not grant an injunction, Missouri will join at least 20 other states that have mandatory waiting periods for women seeking abortions.

Under the 1992 U.S. Supreme Court case Planned Parenthood v. Casey, states cannot place an “undue burden” on women’s access to legal abortions, but certain restrictions, such as waiting periods, may be legal.

At least 11 states’ waiting period laws have been challenged unsuccessfully. Kentucky’s law requires a 24-hour waiting period and counseling about medical benefits from pregnancy. When challenged in Eubanks v. Schmidt, the federal district court upheld the law, saying such restrictions did not have a significant impact on the women’s ability to have abortions.

In 1994, the 8th Circuit Court upheld the North Dakota’s 24-hour waiting period because it ruled the waiting period was not an “undue burden.”

However, four states — Delaware, Massachusetts, Montana and Tennessee — have had their 24-hour waiting period laws overturned.

In June, U.S. District Judge Sue Robinson ruled Delaware’s mandatory 24-hour waiting period law was unconstitutional, ending a 20-year back-and-forth legal battle between the state and abortion rights advocates. The 24-hour waiting period went into effect in 1979, but in 1983 the U.S. Supreme Court decided it was not enforceable.

In 1981, the U.S. Court of Appeals ruled that Massachusetts’ 24-hour waiting period would not necessarily “reduce impulsiveness.”

In 2000, the Tennessee Supreme Court struck down the state’s mandatory two-day waiting period. The court said the law “is not intended as an opportunity for reflection, but is actually intended as an obstacle to abortion.”

In Montana, a 24-hour waiting period was struck down in the 1995 case Planned Parenthood of Missoula v. Montana in Montana District Court. The decision was not appealed.

Brownlie said he believes Missouri will be added to the list.

“We are confident that the court will look at this law and concur that it is vague, ambiguous and unconstitutionally burdensome,” he said.

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