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Judge Blocks Mo. Health Dept. From Revoking Planned Parenthood Clinic's License

January 4, 2016 — A federal judge on Monday issued a ruling blocking the Missouri Department of Health and Senior Services from revoking a Planned Parenthood clinic's license to provide abortion care, the St. Louis Post-Dispatchreports (Stuckey, St. Louis Post-Dispatch, 12/29/15).

Background

Under state law, abortion clinics are required to meet ambulatory surgical center requirements. To meet those requirements, physicians who provide surgical abortions must have admitting privileges with a nearby hospital.

In 2014, University of Missouri Health Care granted "refer and follow" privileges to Colleen McNicholas, a physician who began providing medication abortions at the Columbia-based Planned Parenthood of Kansas and Mid-Missouri's clinic on Aug. 3, 2015.

In August 2015, conservative state senators and the health department director in Missouri debated at a hearing whether the Columbia clinic met state licensing requirements when it received its license in July 2015. During the hearing, state Sen. Kurt Schaefer (R) -- chair of the Missouri Senate Appropriations Committee, as well as an interim committee investigating Planned Parenthood -- said the clinic failed to meet the ambulatory surgical center standards because the clinic's abortion provider does not have admitting privileges. However, Gail Vasterling, director of the Missouri Department of Health and Senior Services, said the standard does not apply because the clinic only provides medication abortions, not surgical abortions. Physicians at the clinic or the clinic itself would need to obtain admitting privilege requirements only if the clinic started to offer surgical abortion.

Following a unanimous vote by a committee of executive staff, MU Health Care announced that it would cease refer and follow privileges, which permit physicians to provide medication abortions, beginning Dec. 1, 2015.

The Columbia clinic on Nov. 23, 2015, stopped offering abortion care in anticipation of McNicholas losing her privileges. MU interim Chancellor Hank Foley said he would support MU Health Care's decision to end refer and follow privileges. Meanwhile, McNicholas currently is seeking to obtain other privileges at MU Health Care.

On Nov. 30, 2015, U.S. District Judge Nanette Laughrey temporarily blocked DHSS from pulling the clinic's license to offer abortion care. She later extended that order to Dec. 28, 2015 (Women's Health Policy Report, 12/22/15).

Details of Ruling

In the latest ruling, Laughrey said PPKM was subject to unfair treatment because it provided abortion care. "Having reviewed the evidentiary record, the Court finds that it is likely that DHSS treated PPKM more harshly than other similarly situated institutions and thereby violated the Equal Protection Clause," she wrote (Zimpfer, Missouri Times, 12/28).

According to Laughrey, evidence also found that DHSS' "unprecedented hasty actions were likely the result of political pressure being exerted by Missouri legislators and the department's perception that if it did not act in accordance with the Legislature's desires, its budget would be cut" (St. Louis Post-Dispatch, 12/29). She wrote, "Mr. (John) Langston ... who has responsibility over [ambulatory surgical centers] at DHSS and whose staff would normally be in charge of generating notices of deficiencies and overseeing plans of correction submitted by [ambulatory surgical centers] ... suggested that DHSS feared retaliation from Senator Schaefer if it did not act in accordance with the senator's goals, as Senator Schaefer both chaired the [interim state Senate committee investigating Planned Parenthood] and sat on the Senate Appropriations Committee" (Missouri Times, 12/28).

Further, Laughrey agreed with PPKM's argument that revoking its license would cause irreparable harm, writing that "if a doctor were sick and unable to use a license in the foreseeable future, the revocation of his license would still cause certain harm even if there were no certainty about his recovery." She continued, "A license is a valuable property right, as evidenced by the substantial investment often associated with getting a license," adding, "The loss of that property interest is the irreparable harm that (Planned Parenthood) is certain to suffer if the license is taken away."

Next Steps

According to the Post-Dispatch, the ruling blocks DHSS from revoking the clinic's license until the lawsuit over the clinic's licensure is resolved (St. Louis Post-Dispatch, 12/29/15).

Laughrey intends to resolve the case by May 1, at which point Planned Parenthood would have had enough time to meet the requirements for operating as an ambulatory surgical center (Missouri Times, 12/28). The clinic cannot provide abortion care until it has a physician with admitting privileges (St. Louis Post-Dispatch, 12/29/15).

PPKM Responds

PPKM President and CEO Laura McQuade praised the ruling, saying, "Judge Laughrey's decision affirms the state of Missouri violated the Equal Protection Clause by treating PPKM's Columbia facility differently than other Ambulatory Surgical Centers ... based on the work our dedicated staff does there." According to McQuade, it is unclear whether the state will appeal the court's ruling.

She added, "We will continue to do everything we can to place a physician in our Columbia health center and provide abortions there." She noted that UM Hospital had confirmed receipt of McNicholas' application for more comprehensive privileges, although it had not yet approved them. She also said the clinic is looking for other ways to meet the requirements, such as finding a physician who already has the correct privileges and who is willing to work at the clinic (Missouri Times, 12/28).