Federal judge directs state and abortion providers to compromise

Monday, September 24, 2007 | 8:14 p.m. CDT; updated 7:05 p.m. CDT, Monday, July 21, 2008

JEFFERSON CITY — A federal judge issued a preliminary injunction Monday barring the state from enforcing new regulations on abortion clinics until it can negotiate a compromise with abortion providers.

The ruling by U.S. District Judge Ortrie Smith, of Kansas City, left attorneys for both the state and abortion providers claiming victory.

State attorneys were pleased because Smith said abortion providers were unlikely to be able to prove their claim that the law itself imposed an unconstitutional obstacle to getting an abortion.

But attorneys for abortion providers were pleased because Smith said that if the state Health Department insisted upon the most stringent interpretation possible, the renovations required of some abortion clinics could prove so costly they could infringe on the right to an abortion.

The judge noted the Department of Health and Senior Services has expressed a willingness to consider exceptions to some of its physical building requirements. He directed abortion providers to apply for specific waivers and directed the state to consider those requests while explaining to clinics what they can do that would be satisfactory.

Smith also granted a victory to abortion providers in ruling that the state likely would impose an unconstitutional burden on the right to an abortion if it enforced the new regulations on facilities that offer only medically induced — not surgical — abortions.

At issue is a law that was supposed to take effect Aug. 28 classifying some abortion clinics as outpatient surgery centers, thus making them subject to state oversight. Smith had issued a temporary restraining order Aug. 27.

The law was challenged by Planned Parenthood of Kansas and Mid-Missouri, which operates clinics in Columbia and Kansas City, and by Allen Palmer, whose Women’s Care Gynecology practice offers abortions in the St. Louis suburb of Bridgeton.

Palmer testified he would close his practice if required to meet the new regulations, which an architect said would cost about $1.3 million for his clinic.

An architect for Planned Parenthood testified it could cost between $532,400 and $674,500 to renovate the Columbia clinic in compliance with the new regulations. Unlike the estimate for Palmer’s office, the Planned Parenthood figure did not include such expenses as loss of business or the cost of new furniture and fixtures.

Planned Parenthood also claimed the requirements should not be imposed on its Kansas City clinic, which offers only medically induced abortions and not surgical abortions.

The judge’s preliminary injunction means “it will be very difficult for the state to ever enforce those regulations on the Kansas City center,” said Peter Brownlie, Planned Parenthood’s president and chief executive officer, and “the first and foremost thing is women who need this service will continue to be able to get it in Columbia.”

Attorney General Jay Nixon’s office had no immediate comment about the decision.

A private attorney for the Health Department said the ruling essentially puts the law on a path toward taking effect.

“Although the court issued a preliminary injunction, we’re very pleased in large part with the result because he upheld the constitutionality of the act and is allowing the process to go forward so that the department can begin to implement the act,” said Dale Schowengerdt, a Leawood, Kan., attorney for the Alliance Defense Fund, which is representing the department.

Abortion providers had wanted their facilities to be grandfathered into the new regulations. But the judge said the state could apply the more stringent criteria for facilities constructed or renovated after October 1987, as long as it is flexible in granting specific exceptions.

The regulations require hallways at least six feet wide and procedure rooms with a minimum length and width of 12 feet, among other things. Neither the Columbia nor Bridgeton clinic currently meets those specifications.

Complying with both those items — and potentially even one of them — could be impossible at the Bridgeton facility. Because the procedure room is next to the hallway, if one is enlarged, the other must shrink, said Bonnie Scott Jones, a New York attorney for the Center for Reproductive Rights, which is representing Palmer.

“Whatever changes he could make, he has made,” Jones said. “He’s come into compliance with anything that’s not really onerous.”

The judge said that if either the department or the abortion providers believe they cannot reach a compromise on the specific regulations and exemptions, they can later ask him to drop the preliminary injunction or issue a permanent injunction.

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