Planned Parenthood Association of Kansas City, Missouri, Inc., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O. v. John Ashcroft, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, Planned Parenthood Association of Kansas City, Missouri, Inc., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O. v. John Ashcroft, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri

Citation: 664 F.2d 687Docket: 80-1130

Court: Court of Appeals for the Eighth Circuit; November 29, 1981; Federal Appellate Court

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A supplemental opinion from the Eighth Circuit Court of Appeals addresses two critical issues regarding Missouri's abortion regulations, specifically section 188.025, which mandates that second and third trimester abortions be performed in a hospital. The court previously vacated a district court ruling declaring the hospitalization requirement unconstitutional and remanded it for further examination of whether this requirement constitutes a substantial burden on a woman’s right to choose an abortion, and if so, whether the state has a compelling interest to justify it.

The district court, under Judge Elmo B. Hunter, gathered additional evidence and made several findings: only one hospital in Missouri performs second trimester dilation and evacuation (D&E) procedures, these procedures are more costly in a hospital setting compared to outpatient facilities, and the hospitalization requirement leads to fewer second trimester abortions being performed. Consequently, the court determined that this requirement significantly interferes with a woman's decision to have an abortion, rendering the D&E procedure—identified as the safest option post-12 weeks—unavailable to many women in Missouri.

The court emphasized that when state legislation creates substantial interference with a woman's abortion decision, it must be assessed against the state’s interest in maternal health. Previous rulings indicated that D&E is the most commonly used and safest method for second trimester abortions, corroborating the district court's findings. The state did not contest that Truman Medical Hospital is the only facility currently willing to perform second trimester D&E procedures.

Hospitalized dilation and evacuation (D&E) procedures are shown to be significantly more expensive than nonhospitalized ones, with some costs being double. The district court found that requiring hospitalized second trimester abortions imposes a financial burden on many women, and this conclusion is upheld as not clearly erroneous. The Missouri statute, section 188.025, is determined to create a substantial interference with a woman's abortion decision, placing the burden on the state to demonstrate that the requirement is reasonably related to protecting women's health. The court noted a lack of quantitative studies comparing the safety of nonhospitalized and hospitalized D&E procedures but concluded that nonhospitalized procedures are equally safe. Thus, section 188.025 is deemed unconstitutional as it is not reasonably related to maternal health.

Regarding recordkeeping, Missouri statute 188.052.2 mandates that physicians complete complication reports after abortions. Plaintiffs argue that incomplete reports could expose physicians to criminal liability if patients cannot provide necessary information. However, the district court interpreted the statute to require physicians to report only what data is reasonably available, a view supported by the Missouri attorney general. This interpretation alleviates the potential dilemma for physicians regarding treatment and reporting. The reporting requirement does not undergo strict scrutiny since no fundamental rights are at stake; rather, it must be rationally related to a legitimate purpose. The court found the requirements aligned with the state's interest in maternal health and consistent with previous rulings, concluding that they are rationally related to medical standards and assistance.

The district court's ruling that the hospitalization requirement for second trimester abortions under section 188.025 is unconstitutional has been affirmed. Conversely, the requirement for physicians to file post-abortion complication reports under subsection 188.052.2 was also upheld. These decisions will be integrated into the previous judgment, Planned Parenthood Ass'n v. Ashcroft, 655 F.2d 848 (8th Cir. 1981).

The ruling followed a hearing on August 6-7, 1981, where testimony was provided by several experts, including Judith A. Widdicombe from Reproductive Health Services and Dr. Stanley Henshaw from the Alan Guttmacher Institute. They highlighted that only one hospital in Missouri reported performing second trimester abortions by the D&E method, indicating limited access to these services. Data from 1979 and 1980 showed that the same hospital accounted for over 99% of second trimester abortions in the state.

Dr. Samuel G. Eubanks, an obstetrician-gynecologist, stated that non-hospitalized second trimester abortions in Kentucky cost approximately half as much as those performed in hospitals. Testimonies in earlier proceedings indicated that the financial burden for women seeking hospital-based second trimester D&E abortions could increase between $150.00 and $1,650.00. The deposition of Dr. Willard Cates was also entered into evidence.

During the period when second trimester abortions were mandated to be performed in hospitals, 540 procedures occurred. In 1980, after this requirement was lifted, the number of second trimester abortions in Missouri rose to 1,390, with 700 performed in hospitals and 690 in outpatient facilities. Dr. Henshaw noted that Missouri only addressed 13% of the perceived need for second trimester abortions in 1979, improving to 34% in 1980. By 1980, there were two providers: Truman Medical Hospital in Kansas City and Reproductive Health Services in St. Louis. Dr. Henshaw did not believe Reproductive Health Services adequately met the demand in St. Louis. Nationally, second trimester abortions accounted for 9% of all abortions, whereas in Missouri, they constituted 3.4% in 1979 and increased to 6.9% in 1980, coinciding with the availability of outpatient clinic procedures. Dr. Eubanks indicated that the cost associated with hospitalized second trimester dilation and evacuation (D&E) procedures created a financial burden for many patients.

The document references the Sixth Circuit's decision in Akron Center for Reproductive Health, where plaintiffs argued that D&E procedures are safer than childbirth, thus challenging the constitutionality of requiring hospital procedures under Roe v. Wade. The district court found the plaintiffs' evidence insufficient to overturn Roe’s standards. The Sixth Circuit acknowledged that some lower courts held that the state's interest in maternal health does not become compelling until the 18th week of pregnancy but affirmed the district court's ruling that the hospital requirement was constitutional. Evidence presented indicated that outpatient procedures might be as safe as those performed in hospitals. Dr. Willard Cates from the CDC testified that D&E procedures up to 16 weeks gestation are comparably safe in outpatient settings. The district court concluded that the law in question restricts D&E procedures, particularly in the 15th and 16th weeks, despite hospitals being better equipped for post-abortion complications, which typically arise 24 to 72 hours after the procedure, by which time the patient would no longer be in a medical facility.

Subsection 188.052.2 mandates that physicians complete individual complication reports for any post-abortion care, detailing the date of the abortion, the location where it occurred, and the nature of any complications diagnosed or treated. Dr. Cates testified that such reporting contributes to the safety of abortion procedures. The court ruled that the requirement for all second trimester abortions to be performed in hospitals, as per section 188.025, is unconstitutional because it is not reasonably related to maternal health. 

The plaintiffs raised concerns that physicians could face dilemmas when patients cannot provide necessary information for the reports, potentially leading to incomplete filings and criminal liability. However, the district court interpreted the statute to require reporting only of information reasonably available to physicians, a view supported by the Missouri attorney general. Thus, the reporting does not compel physicians to refuse treatment or risk liability for incomplete data.

The court determined that the reporting requirement is not subject to strict scrutiny as it does not involve suspect classifications or fundamental rights but needs only a rational connection to a legitimate purpose. The court found that the requirements align with the objectives of Planned Parenthood v. Danforth, providing useful information for medical assistance and standards, and are reasonably related to the state's interest in protecting maternal health.

The district court's conclusions were affirmed: the hospitalization requirement for second trimester abortions is unconstitutional, while the state may require post-abortion complication reports under subsection 188.052.2. This affirmation will be incorporated into the existing judgment from Planned Parenthood Ass'n v. Ashcroft.

Dr. Cates' deposition was presented to the court, highlighting key legal and statistical evidence regarding second trimester abortions in Missouri. Under Section 188.025, all abortions after the first twelve weeks must occur in hospitals. Testimony from Wayne Schramm, the Director of the Bureau of Health Data Analysis, indicated that only one hospital, Truman of Kansas City, reported performing second trimester abortions via the D&E method since 1981. In 1979 and 1980, only three hospitals reported second trimester abortions, with Truman handling over 99% of these procedures.

Dr. Samuel G. Eubanks, a Kentucky physician, testified about the financial implications of hospital versus outpatient abortions, noting that non-hospitalized second trimester abortions cost about half as much as those performed in hospitals. The cost increase for women seeking hospital services ranged from $150 to $1,650. In 1980, after the requirement for hospital-only procedures was lifted, Missouri saw a rise in second trimester abortions from 540 (when all were hospital-based) to 1,390, with a split of 700 in hospitals and 690 in outpatient facilities.

Dr. Henshaw's testimony revealed that while Missouri met only 13% of the perceived need for second trimester abortions in 1979, this figure increased to 34% in 1980 with two providers available. Nationally, second trimester abortions represented 9% of all abortions, with Missouri's figures rising from 3.4% in 1979 to 6.9% in 1980. The higher costs associated with hospitalized D&E procedures created significant financial barriers for patients. The document also references the Sixth Circuit's Akron decision, which argued that D&E procedures can be safer than childbirth up to the 17th or 18th week of pregnancy.

The plaintiffs argued that, based on Roe v. Wade, the state's interest in maternal health does not become compelling until the 18th week of pregnancy, rendering the requirement for all second trimester abortions to be performed in hospitals unconstitutional and overly broad. Evidence presented in the district court indicated that early second trimester clinical abortions are as safe as hospital procedures. However, the district court remained unconvinced by this evidence, choosing to uphold the Supreme Court's stance in Roe v. Wade. The Sixth Circuit recognized that two other district courts had supported the plaintiffs' position regarding the timing of the state's compelling interest but ultimately affirmed the district court's ruling, asserting that the Supreme Court had previously declined to retreat from its "bright line" established in Roe.

The original trial presented evidence suggesting that non-hospital procedures might be safer, supported by testimony from Dr. Willard Cates of the CDC, who stated that D&E procedures up to 16 weeks after the last menstrual period are equally safe in outpatient settings. The district court interpreted Dr. Cates’ testimony to imply that the statute in question restricts D&E procedures during the 15th and 16th weeks. It also concluded that while hospitals are better equipped for treating post-abortion infections, such complications typically arise after the patient has been dismissed from either setting. Additionally, the statute requires physicians to complete a report on any post-abortion complications, which includes specific details such as the date of the abortion and the facility where it was performed, with Dr. Cates noting that such reporting contributes to the safety of abortion procedures.