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In this June 21 photo, a motorist enters Planned Parenthood of the St. Louis Region and Southwest Missouri. (AP file photo)
In this June 21 photo, a motorist enters Planned Parenthood of the St. Louis Region and Southwest Missouri. (AP file photo)

In Missouri, abortion-funding ban heads to high court

ST. LOUIS — The Missouri Supreme Court is preparing to hear arguments on whether abortion is an appropriate subject for lawmakers to address in an appropriations bill.

The arguments, set for the morning of Dec. 10, stem from state lawmakers’ decision in 2018 to deny state funding for “any abortion facility.” The funding ban was included in the Department of Social Services’ appropriations bill for fiscal year 2019.

The appropriations bill, however, doesn’t say exactly what it means by “abortion facility.” Instead, it points to a separate statute, Section 188.015 of the Revised Statutes of Missouri, which defines an abortion facility as “a clinic, physician’s office, or any other place or facility in which abortions are performed or induced other than a hospital.”

As a result of the funding ban, Planned Parenthood of the St. Louis Region, whose Reproductive Health Services clinic is the state’s only abortion provider, cannot be reimbursed even for non-abortion health care it provides through Missouri’s Medicaid program, MO HealthNet. Planned Parenthood argues that the language of the appropriations bill amended existing law by effectively kicking it off the MO HealthNet provider system.

“That revision of the general law cannot constitutionally be accomplished in an appropriations bill,” Chuck Hatfield of Stinson’s Jefferson City office wrote in a brief for the organization.

The state’s Administrative Hearing Commission initially sided with the state. However, the commission had no jurisdiction to consider Planned Parenthood’s constitutional claims. On review, a St. Louis circuit judge said the funding ban violated two provisions of the state constitution. Planned Parenthood is urging the Supreme Court to uphold Judge David L. Dowd’s earlier ruling.

The dispute centers on Article IV, Section 23 of the Missouri Constitution, which says every appropriation law “shall distinctly specify the amount and purpose of the appropriation without reference to any other law to fix the amount or the purpose.” Using a separate statute to define the scope of the abortion-funding ban, Planned Parenthood argues, violates that requirement. Without checking Section 188.015, no one would know that the ban doesn’t include hospitals even if they provide abortions, the group said.

“If a legislator or member of the public wants to understand the purpose of an appropriation, he or she should be able to simply read the bill without having to cross-reference other statutes,” Hatfield wrote.

The Missouri Attorney General’s Office argues that the bill clearly states both the amount of the appropriation (zero dollars) and the general purpose (an abortion-funding ban). The reference to the outside statute simply gives “more detailed guidance,” Solicitor General John Sauer wrote in a brief.

“Invalidating House Bill 2011 because the General Assembly referenced a statute for a definition, as opposed to merely restating the definition in the appropriation bill, would be an absurd result,” he wrote.

The attorney general’s office added that other budget bills approved that year, such as those funding state agencies ranging from agriculture to public safety, frequently cited relevant statutes.

“The constitution prohibits using statutory references instead of stating the purpose,” Sauer wrote. “But using statutory references in addition to stating the purpose is not only constitutional but also a good practice — linking up substantive litigation and the appropriations meant to implement them.”

Hatfield responded that just because the legislature frequently lists statutes in appropriations bills doesn’t make such references legal. He noted that there are no precedents “meaningfully interpreting” Article IV, Section 23. “It simply illustrates the need for this Court to address the restrictions imposed” by the constitution, he wrote in a footnote.

The case also implicates a separate provision of the constitution. Article III, Section 23 requires bills to have a single subject. It exempts appropriation bills, noting that they “may embrace the various subjects and accounts for which moneys are appropriated.” Nonetheless, an appropriation bill can only direct where money is spent, and it cannot be used to modify existing laws.

Planned Parenthood says the bill did change the law by effectively excluding the organization from Medicaid reimbursements it otherwise would receive for covered services. The attorney general’s office said there was no conflict between the appropriations bill and the state’s MO HealthNet payment provisions, and that the program’s beneficiaries are free to obtain health services from other providers.

Hatfield urged the court to address both constitutional arguments. During the 2019 session, lawmakers again denied funding to abortion providers for fiscal year 2020. But this time, the bill eliminated the reference to Section 188.015 and directly defined what “abortion facility” means.

“If the Court does not address that issue now, it will inevitably return,” Hatfield wrote.

The briefs make no reference to abortion’s constitutionality under the U.S. Constitution. However, the case is one of many litigation efforts in Missouri that touch on abortion policy.

The attorney general’s office also is in the process of appealing an injunction that barred the state from implementing a 2019 law banning most abortions after a fetal heartbeat is detected. The 8th U.S. Circuit Court of Appeals is expected to hear the case in April 2020.

Meanwhile, the Administrative Hearing Commission heard testimony in October on whether the state can revoke the St. Louis clinic’s license, which would make Missouri the only state without a functioning abortion clinic. A ruling isn’t expected until February.

Earlier this year, the Missouri Supreme Court turned aside a challenge to the state’s informed-consent law, which requires a 72-hour waiting period for abortions. An unnamed plaintiff alleged the law violated her religious rights as a member of The Satanic Temple. The court found the law does not adopt any religious tenet.

The abortion-funding case is the first argument scheduled for the Supreme Court’s Dec. 10 and 11 dockets, which mark the court’s last scheduled oral arguments of the year.

The Supreme Court case is Planned Parenthood of the St. Louis Region v. Department of Social Services, SC98020. The 8th Circuit case is Reproductive Health Services of Planned Parenthood of the St. Louis Region v. Parson, 19-3134.

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