Paul, Weiss, Planned Parenthood and ACLU Sue Missouri to Overturn 8-Week Abortion Ban

As reported on CBS News and in other news outlets, Paul, Weiss, along with co-counsel at Planned Parenthood and the ACLU, filed suit against the State of Missouri to prevent a near-total abortion ban from taking effect in the state. The lawsuit was filed on behalf of the last abortion provider remaining in the state, Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. and its chief medical officer.

In May, Missouri Gov. Mike Parson signed House Bill 126, one of the nation’s most restrictive abortion laws. If the ban is allowed to go into effect on August 28, 2019, abortion would be outlawed at or after the eighth week of pregnancy, with no exceptions for victims of rape or incest. At eight weeks, many women (especially those with irregular cycles, on birth control, or with other medical conditions) do not even realize they are pregnant. The bill includes a series of “nested” or “trigger” bans which would outlaw abortions at or after the 14th, 18th or 20th week of pregnancy, each taking effect if the earlier ban is struck down as unconstitutional (together, the “Gestational Age Bans”). The bill also bans abortions at any point in pregnancy that are based solely on a diagnosis of or screening test suggesting Down syndrome or the race or sex of the embryo or fetus (the “Reason Ban”). The complaint for injunctive and declaratory relief, filed in U.S. District Court in St. Louis, argues that all of these bans violate the U.S. Constitution and Supreme Court precedent, which protect the right to an abortion at any time prior to viability (generally no earlier than 24 weeks).

Missouri already has a law on the books banning any abortion of a viable fetus, so these new Gestational Age Bans, like those recently passed in other states, clearly target pre-viability abortion and are a direct challenge to four decades of unbroken Supreme Court precedent holding that a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability—a decision the Supreme Court has characterized as central to personal dignity and autonomy and central to the liberty protected by the Fourteenth Amendment. The Reason Ban--which would dictate which factors are permissible in making the choice—is also clearly unconstitutional under unbroken Supreme Court precedent. As noted in the complaint, our clients are aware of patients who have terminated pregnancies based in whole or in part on a Down syndrome diagnosis, but they are unaware of any patient ever doing so based on the race or sex of the embryo or fetus.

By way of background, Missouri is currently one of the most difficult states in which to obtain an abortion. Over the years, Missouri has imposed numerous medically unnecessary restrictions on abortion that make it extremely difficult to obtain this extremely safe procedure, including a mandatory 72-hour waiting period (requiring that a patient make two in-person trips to a clinic), a same doctor requirement (requiring that the same doctor that gives a patient state-mandated information at the first appointment be the doctor that performs the abortion), a requirement that the doctor performing the abortion have admitting privilege at a hospital located within 15 minutes of the clinic (notwithstanding that abortion has lower complication rates than most other minor procedures as to which no similar requirement applies), and a requirement that doctors perform an intrusive pelvic exam before all abortions--even medication abortions, where pelvic exams are medically inappropriate. As a result of these and numerous other medically unnecessary regulations, Missouri has gone from having five abortion clinics in 2008 to having only one clinic (located in the easternmost part of the state) today. Moreover, given the pelvic exam requirement, the clinic no longer provides medication abortions to its patients because the providers view an intrusive pelvic exam, when medically unnecessary, to be an effort to degrade and traumatize patients and therefore unethical for them to perform.

The Paul, Weiss team includes litigation partners Claudia Hammerman, Jane O’Brien, pro bono counsel Emily Goldberg, and associates Daniel Klein, Allison Penfield, Melissa Alpert, Melina Meneguin Layerenza, Teresa Akkara and Naz Wehrli.