Planned Parenthood of St. Louis Region v. Department of Social Services

 

Planned Parenthood of St. Louis Region v. Department of Social Services, Division of Medical Services, 602 S.W.3d 201 (Mo. 2020) (en banc)

By Lucy Downing

 

I.          Introduction

            In a six-one decision, the Missouri Supreme Court affirmed a circuit court’s decision declaring a provision of an appropriation bill purporting to deny Medicaid reimbursement to Planned Parenthood of the St. Louis Region (“Planned Parenthood”) for medical services rendered unconstitutional and severing it from the remainder of the bill.  The Court reversed the portion of the circuit court’s judgment taxing costs against the state as statutorily unauthorized.  Judge Paul C. Wilson wrote the majority opinion with Judge Zel M. Fischer dissenting.

II.         Background

            Missouri’s Medicaid program is administered by the MO HealthNet Division of the Missouri Department of Social Services.[1]  RSMo section 208.152.1 provides that the MO HealthNet Division “shall make payments to authorized providers on behalf of Medicaid-eligible individuals for physicians’ services and family planning.”[2]  The General Assembly appropriated funds for the fiscal year of 2019 to pay for these services, and Planned Parenthood was an authorized provider of these services due to a statutorily-authorized agreement with MO HealthNet.[3]  However, MO HealthNet refused to reimburse Planned Parenthood for services rendered in 2019 due to section 11.800 of a new Missouri appropriation bill.[4]  The section provided: “No funds shall be expended to any abortion facility as defined in Section 188.015, RSMo, or any affiliate thereof.”[5]

III.       Legal Background

            Planned Parenthood filed a complaint with the Administrative Hearing Commission, which ruled in the state’s favor without addressing Planned Parenthood’s constitutional claim due to its lack of authority to make such a determination.[6]  Planned Parenthood then sought consolidated review in the circuit court, arguing it is impermissible to use an appropriation bill to amend substantive law because such behavior violates article III, section 23 of the Missouri Constitution.[7]  The circuit court agreed with Planned Parenthood and therefore declared Section 11.800 unconstitutional, severed the section from the rest of the bill, and taxed costs against the state.[8]  MO HealthNet appealed to the Missouri Supreme Court.[9]

IV.       Instant Decision

A.   Majority

            Writing for the majority, Judge Wilson first discussed the constitutionality of Section 11.800 of the appropriation bill.[10]  Article III, section 23 of the Missouri Constitution provides, “No bill shall contain more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception in section 37 of this article and general appropriation bills, which may embrace the various subjects and accounts for which moneys are appropriated.”[11]  Thus, while section 23 prohibits bills with more than one subject, it does contain a “narrow exception” for appropriation bills “because such bills necessarily include multiple subjects, i.e., appropriations of differing amounts from differing accounts for differing subjects.”[12] 

However, the majority explained that the Court has long recognized that the exception is limited, and “section 23 [still] limits appropriation bills to appropriations only.”[13]  To clarify, “any bill that purports to combine appropriations with the enactment or amendment of general or substantive law necessarily contains more than one subject in violation of article III, section 23, and such a bill does not fall within the exception for general appropriation bills.”[14]  The majority clarified, however, that an appropriation bill must be in direct conflict with a general law in order for it to be considered more than solely an appropriation in this context.[15]

Accordingly, the majority examined whether Section 11.800 directly conflicts with general law, specifically RSMo Sections 208.153.1 and 208.152.1.[16]  Section 208.152.1 “provides that MO HealthNet payments shall be made on behalf of Medicaid-eligible individuals for physicians’ services and family planning,” while section 208.153.1 provides that “these individuals can obtain those services from any authorized health care provider, i.e., any provider that has an agreement with MO HealthNet Division to provide those services.”[17]  Because these statutes “specify clearly and unambiguously what MO HealthNet payments will cover and two whom those payments must be made, . . . the language in section 11.800 seeking to disqualify certain authorized providers based on services they provide, separately and apart from the MO HealthNet program, – and for which no MO HealthNet payments can be made ­– is a naked attempt to use HB2011 both to appropriate funds for various purposes and to amend sections 208.153.1 and 208.152.1.”[18]  Therefore, the majority found this to be “a clear and unmistakable violation of the proscription in article III, section 23 of the Missouri Constitution against bills with multiple subjects.”[19]

Judge Wilson then analyzed whether the circuit court was correct in severing section 11.800 from the remainder of the appropriation bill.[20]  While he agreed with the circuit court that the bill should be severed, he took issue with how the lower court reached its conclusion on the issue, specifically its reliance on RSMo Section 1.140 during its severance analysis.[21]  He explained that the Court uses a different severance analysis for procedurally unconstitutional provisions versus substantively unconstitutional provisions.[22]  For substantive violations, the Court applies section 1.140 to analyze the propriety of severance.[23]  “On the other hand, when evaluating a procedural constitutional violation, the doctrine of judicial severance is applied and severance is only appropriate when this Court is convinced beyond a reasonable doubt that the legislature would have passed the bill without the additional provisions and that the provisions in question are not essential to the efficacy of the bill.”[24]  While the circuit court was incorrect in applying section 1.140 in its severance analysis because this case involves a procedural violation, the majority nonetheless agreed that severance is appropriate under the analysis for procedural violations.[25]  Judge Wilson noted that the General Assembly intentionally segregated section 11.800 from the appropriations in the rest of the bill and it expressly noted that the other sections shall not be severed from each other but provided no similar prohibition against severing section 11.800.[26]  Thus, the majority affirmed the circuit court’s determination regarding severance because it was satisfied “beyond a reasonable doubt that the appropriation bill would have passed without section 11.800, and that nothing in 11.800 is essential to the efficacy of the appropriations made elsewhere in [the appropriation bill].”[27]

Lastly, the majority reversed the lower court’s determination to tax costs to MO HealthNet because it found no statutory authorization for such a decision.[28]

B.   Dissent

            In his dissent, Judge Fischer argues that section 11.800 is constitutional.[29]  He posits that the language of article III, section 23 plainly and unambiguously exempts appropriation bills from its purview, and therefore it does not control the resolution of this case.[30]  He further argues that, “even if [section] 23 does apply to appropriation bills, the challenged language in HB2011 is constitutional because it embraces one of the various subjects for which money is appropriated.”[31]

V.        Comment

            The situation leading up to this opinion illustrates the continuation of Missouri’s aggressive legislative tactics to make abortion more difficult in the state.  Most notably, the state tried to deny the license of Missouri’s sole remaining abortion clinic last year.[32]  Indeed, Planned Parenthood officials in that case accused Missouri of using the legislative process as a “weaponizing mechanism designed to deny abortion access.”[33]  Had the Court allowed the appropriation bill to pass constitutional muster, it would have deprived Planned Parenthood of millions of dollars’ worth of medical services rendered.[34]  Additionally, the organization provides other essential health services such as cancer screenings, pap smears, and birth control pills – all of which would be at risk without funding.[35]  While this decision allows Missouri women continued access to safe sexual and reproductive healthcare for now, it is likely only a matter of time before Missouri’s legislative actions face another legal challenge.

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[1] See Planned Parenthood of St. Louis Region v. Dep’t of Soc. Services, Division of Medical Services, 602 S.W.3d 201 (Mo. banc 2020).

[2] Id. at 204.

[3] Id.

[4] Id.

[5] House Bill No. 2011, § 11.800 (2018).

[6] See Planned Parenthood, 602 S.W.3d at 206.

[7] Id.

[8] Id.  The Supreme Court vacated the circuit court’s decision to tax costs against the state, holding such a tax to be without statutory authorization. 

[9] Id.

[10] Id.

[11] Mo. Const. art. III, § 23.

[12] Planned Parenthood, 602 S.W.3d at 206.

[13] Id. (internal quotations omitted).

[14] Id. (internal quotations omitted).

[15] Id. at 208.

[16] Id.

[17] Id.

[18] Id. at 208–09.

[19] Id. at 209.

[20] Id.

[21] Id.

[22] Id. at 210.

[23] Id. at 211.

[24] Id. at 211–12. (internal quotations omitted).

[25] Id. at 212.

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 213.

[30] Id.

[31] Id.

[32] Joe Harris, Missouri Court Shuts Down Effort to Defund Planned Parenthood, Courthouse News Service (June 30, 2020), https://www.courthousenews.com/missouri-court-shuts-down-effort-to-defund-planned-parenthood/.

[33] Id.

[34] Id.

[35] Id.

June Medical Services L.L.C. v. Russo

 June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103

Opinion handed down June 29, 2020

By Lucy Downing

I.          Introduction

In a five-four decision, the United States Supreme Court struck down a Louisiana law requiring physicians who provide abortions to obtain admitting privileges at a local hospital.  The Court held that the Louisiana admitting privilege requirement, facially identical to a Texas law the Court struck down four years ago in Whole Woman’s Health v. Hellerstedt, was an undue burden on abortion access.  However, the Court missed an opportunity to meaningfully address how targeted regulations of abortion providers (“TRAP laws”) like the admitting priviliges requirement at issue work in the greater context of abortion restrictions to gradually chip away at the abortion right.  Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote the plurality opinion.[1]

II.        Background

            In June 2014, the Louisiana Legislature passed Act 620 which requires any physician who performs abortions to hold “active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”[2]  To have “active admitting privileges,” a doctor must be a member in good standing of the hospital’s medical staff with the ability to admit a patient and to provide diagnostic and surgical services to such patient.[3]  Prior to Act 620’s passage, Louisiana law already required abortion providers either to possess local hospital admitting privileges or to have a transfer agreement with a physician who had such privileges.[4]  Act 620 removed that flexibility and attached liability to physicians for failing to comply, possibly leading to “fines of up to $4,000 per violation, license revocation, and civil liability.”[5]

            Several weeks before Act 620 was to take effect in September 2014, three abortion clinics and two abortion providers filed a lawsuit in the United States District Court for the Middle District of Louisiana alleging that Act 620 was unconstitutional as an undue burden on their patients’ rights to obtain abortions.[6]  The plaintiffs sought a temporary restraining order followed by a preliminary injunction to prevent the law from taking effect.[7]  The State opposed the temporary restraining order and urged the district court to hold a hearing on the preliminary injunction as soon as possible, but conceded that the physicians clearly had standing to bring suit.[8]  Instead of ruling on whether to stay Act 620’s effective date, the district court temporarily prohibited the State from enforcing the Act’s penalties and directed the plaintiff doctors to continue their efforts to obtain conforming privileges while keeping the court informed of their progress.[9]

III.       Legal Background

            In June 2015, the District Court held a six-day bench trial on the preliminary injunction.[10]  After hearing live testimony from a dozen witnesses and making extensive factual findings on the issue, the district court declared Act 620 facially unconstitutional and granted the preliminary injunction on its enforcement.[11]

            The State immediately appealed to the United States Court of Appeals for the Fifth Circuit asking for a stay of the preliminary injunction, which the court granted.[12]  The U.S. Supreme Court then granted its own stay at the plaintiffs’ request, leaving the district court’s injunction intact.[13]

            About two months later, the U.S. Supreme Court issued its decision in Whole Woman’s Health v. Hellerstedt, striking down a Texas law nearly identical to the Louisiana law at issue here.[14]  In Whole Woman’s Health, the Court held that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid.”[15]  The Court then undertook a state-specific analysis and assessed the asserted benefits and burdens of the law as it operated in Texas.[16]  Reviewing the record in that case, the Court held that the Texas admitting privilege law did not further the State’s asserted interest in women’s health because it provided no real health benefit—abortions in Texas were extremely safe before the law’s passage, so there was no health-related issue the law attempted to cure.[17]  Futher, the law placed a substantial obstacle in the path of Texas women seeking an abortion because half of the state’s abortion clinics closed after the law went into effect.[18]  The Court then struck down the Texas law, reasoning that the obstacle, “when viewed in light of the virtual absence of any health benefit, imposed an undue burden on abortion access in violation of the Federal Constitution.”[19] 

In light of Whole Woman’s Health, the Court remanded this case to the Fifth Circuit for reconsideration and the Fifth Circuit remanded to the district court for further fact-finding and a ruling on the plaintiffs’ request for a permanent injunction regarding Act 620.[20]  The district court made extensive factual findings on the Act’s purported benefits and its impact on women’s access to abortion in Louisiana.[21]  With respect to the Act’s asserted benefits, the district court found that: (1) abortion in Louisiana “has been extremely safe, with particularly low rates of serious complications”; (2) it “rarely . . . is necessary to transfer patients to a hospital”; and (3) “whether or not a patient’s treating physician has admitting privileges is not relevant to the patient’s care.”[22]  Accordingly, the district court found there was “no significant health-related problem that the new law helped to cure,” and, thus, there was “no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law.”[23]

            As to the Act’s burdens on women’s access to abortion, the district court found that the approximately 10,000 women who obtain abortions in Louisiana each year are served by six doctors at five abortion clinics, and that by the time of its decision, two of those clinics had closed and one of the doctors had retired, leaving only five physicians in the entire state who perform abortions, most of whom were unable to obtain admitting privileges required by Act 620.[24]  The district court further found that the doctors’ inability to obtain privileges was “caused by Act 620 working in concert with existing laws and practices, including hospital bylaws and criteria that preclude or, at least greatly discourage, the granting of privileges to abortion provers.”[25]  Thus, enforcing the Act would “result in a drastic reduction in the number and geographic distribution of abortion providers . . .” and prevent many women seeking a safe, legal abortion in Louisiana from obtaining one.[26]  The district court added that “Act 620 does not advance Louisiana’s legitimate interest in protecting the health of women seeking abortions.  Instead, Act 620 would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.”[27]  Moreover, the court found no legally significant distinction between Act 620 and the Texas law struck down in Whole Woman’s Health because Act 620 was modeled after the Texas law, functions in the same manner, and similarly imposes significant obstacles to abortion access with “no countervailing benefits.”[28]  Accordingly, the district court declared Act 620 unconstitutional and entered a permanent injunction forbidding its enforcement.[29]

            The State appealed, and the Fifth Circuit reversed the district court’s decision.[30]  The Fifth Circuit disagreed with nearly all of the district court’s findings regarding Act 620’s burdens, and it differentiated the Act from the Texas law at issue in Whole Woman’s Health concluding that the burden Act 620 imposes on abortion access is “dramatically less” than that imposed by the Texas law.[31]  In terms of the Act’s asserted benefits, the Fifth Circuit argued that, “unlike Texas, Louisiana presents some evidence of a minimal benefit,” despite the district court’s contrary finding that the law provided no real health benefit to women.[32]

            The U.S. Supreme Court then issued a stay of the Fifth Circuit’s reversal at the plaintiffs’ request and granted certiorari to address the Fifth Circuit’s decision on the merits.[33]  The Court also granted the State’s cross-petition for certiorari challenging the plaintiff’s standing to bring the action.[34]

IV.       Instant Decision

            The opinion first addressed the State’s argument that the plaintiff physicians lacked standing to bring suit on behalf of their patients.  The Court held that the State waived that argument when it conceded the physicians’ standing at the district court in order to obtain a quick decision on the merits.[35]  Further, the Court pointed out its long-standing precedent of allowing abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.[36]

            Turning to the merits, the opinion reiterated the proper standard for assessing abortion regulations: “a statute which, while furthering a valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.”[37]  Further, “unnecessary health regulations impose an undue burden if they have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”[38]  Noting that the Fifth Circuit did not take issue with the legal standard used by the district court so much as the factual findings it used in reaching its decision, the Court emphasized that “a district court’s findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”[39]  This is a highly deferential standard, and a court of appeals may not reverse a plausible account of the evidence given the record, even if it would have weighed the evidence differently if it had been sitting as the trier of fact.[40]

            With that standard in mind, the Court then carefully assessed whether the district court’s findings were sufficient to support its conclusion that Act 620 was unconstitutional.[41]  It concluded that, in light of the record, “the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support.  None is ‘clearly erroneous.’”[42]  The Court further concluded that “[t]his case is similar to, [and] nearly identical with, Whole Woman’s Health.  And the law must consequently reach a similar conclusion.  Act 620 is unconstitutional.”[43]

V.        Comment and Conclusion

            While the Court’s decision ended up striking down Louisiana’s admitting privilege requirement, its continued use of a state-specific analysis leaves the door open for states to continue strategically restricting abortion using the argument that each state is different.  TRAP laws such as the admitting privileges requirement at issue do not further a legitimate interest in women’s health.[44]  The American Medical Association, American Public Health Association, and American College of Obstetricians and Gynecologists oppose these restrictions, recognizing that they serve no legitimate purpose.[45]  Today, abortion procedures are generally quite safe, and TRAP laws ostensibly enacted under the guise of furthering women’s health do no more than subject women to more health risks by making the process of obtaining an abortion more burdensome.[46]  In practice, TRAP laws further strategic legislative goals of eroding the abortion right into nonexistence. 

While admitting privilege requirements have been struck down twice by the Court and blocked in eight states, they are currently still in effect in Missouri, North Dakota, and Utah.[47]  In Missouri, for example, the admitting privilege requirement acts as one piece of a complicated web of restrictions designed to make access to abortion more difficult.[48]  Other anti-abortion measures in Missouri include strict limits on insurance coverage of abortion, a parental consent requirement for minors, a mandate doctors counsel patients in a way that is intended to dissuade them from obtaining the procedure, a mandatory seventy-two-hour waiting period between clinic visits, and other similar restrictions.[49]  As the first state to enact an admitting privilege requirement, Missouri has proven this strategy quite effective as the state is down to one remaining abortion clinic.[50]  However, Missouri is not the only state using this tactic.[51]  While the Court saw the Louisiana law for what it really was, the opinion was limited to Louisiana and failed to meaningfully address how admitting privilege requirements fit into the framework of anti-abortion legislative strategies.  Thus, states like Missouri will likely continue legislating to incrementally strip away abortion access.

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[1] While Justice Roberts filed a concurring opinion and Justices Thomas, Alito, Gorsuch, and Kavanaugh each filed dissenting opinions, this article focuses on the plurality opinion.

[2] June Medical Services L.L.C. v. Russo, 140 S.Ct. 2112 (2020).

[3] Id. at 2113 (quotations omitted).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2113­–14.

[9] Id. at 2114.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id..

[20] June Medical Services L.L.C. v. Russo, 140 S.Ct. 2112, 2113­–14 (2020).

[21] Id. at 2114-16.

[22] Id. at 2114­–15 (quotations omitted).

[23] Id. at 2115 (quotations omitted).

[24] Id.

[25] Id. (quotations omitted).

[26] Id. at 2115–16.

[27] Id. at 2116.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at 2117.

[34] Id.

[35] Id. at 2117–18.

[36] Id. at 2118-19.

[37] Id. (quotations omitted).

[38] Id. (quotations omitted).

[39] Id. at 2121 (quotations omitted).

[40] Id.

[41] See id. at 2122–32.

[42] Id. at 2132.

[43] Id. at 2133.

[44] See Elizabeth Nash & Megan Donovan, Admitting Privileges Are Back at the U.S. Supreme Court with Serious Implications for Abortion Access, Guttmacher Inst. (last visited Sept. 18, 2020), https://www.guttmacher.org/article/2019/10/admitting-privileges-are-back-us-supreme-court-serious-implications-abortion-access.

[45] Id.

[46] Id.

[47] Id.

[48] See A Dark Milestone for Women’s Rights: A State With No Abortion Clinics, N.Y. Times (May 28, 2019), https://www.nytimes.com/2019/05/28/opinion/missouri-abortion-clinic.html.

[49] Id.

[50] Id.

[51] See id.