Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, s. 80-1130
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | Before LAY, Chief Judge, HENLEY; LAY |
| Citation | 664 F.2d 687 |
| Parties | PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O., Appellees, v. John ASHCROFT, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, Appellants. PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O., Appellants, v. John ASHCROFT, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, Appellees. |
| Docket Number | Nos. 80-1130,80-1530,s. 80-1130 |
| Decision Date | 30 November 1981 |
Page 687
INC., Naim S. Kassar, M.D., Reproductive Health
Services, Allen S. Palmer, D.O., Appellees,
v.
John ASHCROFT, Attorney General of State of Missouri, Ralph
L. Martin, Prosecuting Attorney of Jackson County,
Missouri, Appellants.
PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI,
INC., Naim S. Kassar, M.D., Reproductive Health
Services, Allen S. Palmer, D.O., Appellants,
v.
John ASHCROFT, Attorney General of State of Missouri, Ralph
L. Martin, Prosecuting Attorney of Jackson County,
Missouri, Appellees.
Eighth Circuit.
Decided Nov. 30, 1981.
Page 688
Before LAY, Chief Judge, HENLEY, Circuit Judge, and HARRIS, * Senior District Judge.
LAY, Chief Judge.
This supplemental opinion is necessitated by reason of our previous certification to the district court relating to two issues. In our original opinion, we vacated the district court's finding that the hospitalization requirement for second trimester abortions, under section 188.025 of the Missouri statutes, is unconstitutional. We remanded that issue to the district court for further proceedings and findings as to whether the hospitalization requirement is a substantial burden on a woman's decision to have an abortion and, if so, whether the state has shown a compelling state interest which justifies the requirement. We also vacated the district court's finding that the state may require a physician to file postabortion complication reports under section 188.052.2 and remanded this provision for reconsideration in view of the argument made by the parties.
In accord with our certification the district court took additional evidence 1 and made further findings regarding the statute's hospitalization requirements for all second trimester abortions. 2
The district court, the Honorable Elmo B. Hunter presiding, found: (1) only one hospital in Missouri currently performs second trimester dilation and evacuation (D&E) procedures; (2) second trimester D&E procedures performed in a hospital are generally significantly more expensive than the same procedures performed in an outpatient facility; and (3) requiring all second trimester abortions to be performed in a hospital results in fewer second trimester procedures being performed than if hospitalization was not required. As a result, the district court found the second trimester D&E procedure, the safest post-12 week abortion technique currently available, is an alternative which is not available to many pregnant women in Missouri. On this basis Judge Hunter found that section 188.025 creates a substantial interference with and imposes a direct burden on a woman's decision to have an abortion.
I. Second Trimester Hospitalization Requirement.
Section 188.025 requires that second and third trimester abortions be performed in a hospital. Mo.Ann.Stat. § 188.025 (Vernon). If state legislation creates substantial interference with and imposes a direct burden on a woman's decision to have an abortion, then the state requirement is to be evaluated to determine if it reasonably relates to the state's interest in maternal health. Roe v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973); Planned Parenthood Ass'n v. Ashcroft, 655 F.2d 848, 854 (8th Cir. 1981).
Page 689
This court concluded previously, and additional evidence presented to the district court reinforces the conclusion, that D&E is the most used and safest procedure for second trimester abortion. Ashcroft, 655 F.2d at 855.
At the original trial of this action, the district court concluded that second trimester D&E was available only in one hospital in Missouri. That conclusion rested solely on the personal knowledge of two physicians, neither of whom testified that he was familiar with the policies of the hospitals throughout the state. However, evidence presented at the evidentiary hearing persuasively corroborates the district court finding. 3 The state did not dispute that any hospital other than Truman Medical Hospital has performed or is willing to perform second trimester abortions using the D&E procedures.
The record demonstrates that hospitalized D&E's are more expensive than nonhospitalized D&E's. There exists evidence that some hospitalized second trimester D&E procedures are twice as expensive as nonhospitalized D&E procedures. 4 The district court concluded from the evidence that requiring hospitalized second trimester abortions places a financial burden on many women seeking such abortions. 5 On the basis of the record presented, this finding is not clearly erroneous.
Since section 188.025 creates a substantial interference with and imposes a direct burden on a woman's decision to have an abortion, the state has the burden of showing that Missouri's requirement reasonably relates to the protection of the woman's health. As we stated in our previous decision, the state must show that nonhospitalized D&E procedures can reasonably be considered
Page 690
more dangerous than hospital procedures, including hospitalized D& E. Ashcroft, 655 F.2d at 856.The central issue is the relative safety of nonhospitalized D&E and hospitalized methods. No quantitative studies are cited which directly compare the relative safety of the two procedures. However, the district court has found explicitly that a nonhospitalized second trimester D&E procedure is just as safe as those second trimester D&E procedures conducted in hospitals. 6 Since the district court's finding is not clearly erroneous, we find that nonhospitalized second trimester D&E procedures are no more dangerous to maternal health than hospitalized procedures....
To continue reading
Request your trial
-
Margaret v. Treen, Civ. A. No. 78-2765.
...to strict scrutiny." Planned Parenthood Association of Kansas City, Missouri v. Ashcroft, 655 F.2d 848, 864 (8th Cir.1981), op. supp. 664 F.2d 687 (8th Cir.1981), cert. granted 456 U.S. 988, 102 S.Ct. 2267, 76 L.Ed.2d 733 (1982). In Ashcroft, the Court held that a Missouri law which raised ......
-
City of Akron v. Akron Center For Reproductive Health, Inc Akron Center For Reproductive Health, Inc v. City of Akron, Nos. 81-746
...provisions of this Chapter." 9. Compare Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 655 F.2d 848 (CA8), supplemented, 664 F.2d 687 (CA8 1981) (invalidating hospital requirement), with Simopoulos v. Commonwealth, 221 Va. 1059, 277 S.E.2d 194 (1981) (upholding hospital req......
-
Planned Parenthood Association of Kansas City, Missouri Inc v. Ashcroft Ashcroft v. Planned Parenthood Association of Kansas City, Missouri Inc, Nos. 81-1255
...and 188.028 are constitutional. 655 F.2d 848 (8th Cir., 1981), affirmed in part, reversed in part, vacated in part, and remanded; 664 F.2d 687 (8th Cir., 1981), affirmed. Justice POWELL delivered the opinion of the Court with respect to Parts I, II, and VI, concluding that the second-trimes......
-
Reproductive Health Services v. Webster, No. 86-4478-CV-C-5.
...has the burden of proving a health-justification. Id. at 430, 103 S.Ct. 2492-93; Planned Parenthood Ass'n of Kansas City v. Ashcroft, 664 F.2d 687, 689 (8th In City of Akron, 462 U.S. 416, 103 S.Ct. 2481, and Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, the Supreme Court held that a hospitalizat......
-
Margaret v. Treen, Civ. A. No. 78-2765.
...to strict scrutiny." Planned Parenthood Association of Kansas City, Missouri v. Ashcroft, 655 F.2d 848, 864 (8th Cir.1981), op. supp. 664 F.2d 687 (8th Cir.1981), cert. granted 456 U.S. 988, 102 S.Ct. 2267, 76 L.Ed.2d 733 (1982). In Ashcroft, the Court held that a Missouri law which raised ......
-
City of Akron v. Akron Center For Reproductive Health, Inc Akron Center For Reproductive Health, Inc v. City of Akron, s. 81-746
...provisions of this Chapter." 9. Compare Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 655 F.2d 848 (CA8), supplemented, 664 F.2d 687 (CA8 1981) (invalidating hospital requirement), with Simopoulos v. Commonwealth, 221 Va. 1059, 277 S.E.2d 194 (1981) (upholding hospital req......
-
Reproductive Health Services v. Webster, 86-4478-CV-C-5.
...has the burden of proving a health-justification. Id. at 430, 103 S.Ct. 2492-93; Planned Parenthood Ass'n of Kansas City v. Ashcroft, 664 F.2d 687, 689 (8th In City of Akron, 462 U.S. 416, 103 S.Ct. 2481, and Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, the Supreme Court held that a hospitalizat......
-
Reproductive Health Services v. Webster, 86-4478-CV-C-5.
...has the burden of proving a health-justification. Id. at 430, 103 S.Ct. 2492-93; Planned Parenthood Ass'n of Kansas City v. Ashcroft, 664 F.2d 687, 689 (8th In City of Akron, 462 U.S. 416, 103 S.Ct. 2481, and Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, the Supreme Court held that a hospitalizat......