No challenge expected on Missouri abortion law

JEFFERSON CITY, Mo. -- A new Missouri law requiring a 72-hour abortion waiting period is set to take effect this week, and the state's only licensed abortion clinic isn't planning to try to stop it.

Although Planned Parenthood officials have denounced the Missouri law as "onerous" and "burdensome" for women, the organization isn't planning to file a lawsuit before the measure takes effect Friday. That's because abortion-rights groups have determined their chances of success aren't that good.

"We've had our national attorneys from all of the leading women's health organizations in the country work with us, and we have a consensus that we do not have a route at this time to go to court and to stop this law from going into effect -- as disappointing and as frustrating as that is," said Paula Gianino, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri.

An attorney for the American Civil Liberties Union, which has challenged other abortion laws, said it also has no plans to try to block the Missouri law from taking effect.

Missouri's law will impose the second-longest abortion waiting period in the nation behind only South Dakota, where the 72-hour period can sometimes extend longer because it doesn't count weekends and holidays. Utah also has a 72-hour requirement, but unlike Missouri, Utah allows exceptions for rape, incest and other circumstances.

Utah's law has not been challenged in court.

A Planned Parenthood affiliate filed a federal lawsuit against South Dakota's law after it passed in 2011 and obtained a preliminary injunction that temporarily blocked it from taking effect. The lawsuit asserted that the waiting period imposed an "undue burden on women's reproductive rights" and violated their constitutional right to equal protection.

But that challenge was dropped in February 2013 at the request of Planned Parenthood. The organization noted that it had adjusted physicians' schedules at its only clinic in Sioux Falls to avoid weekslong delays and didn't feel confident it could prevail in the 8th U.S. Circuit Court of Appeals, which it said had "ruled against women's interests time after time."

Missouri is covered by the same St. Louis-based federal appeals court.

Supporters of the 72-hour waiting period hope it will lead to fewer abortions by causing women to reconsider whether to go through with the procedure.

"Generally, reflection periods have been consistently upheld as constitutional by the U.S. Supreme Court and other federal and state courts," said Denise Burke, vice president of legal affairs at Americans United for Life. "Reflection periods support a truly informed choice."

About half the states, including Missouri, require abortion waiting periods of 24 hours, which were upheld by the U.S. Supreme Court in a 1992 case involving a Pennsylvania law. The movement toward three-day waiting periods is relatively new, and it's not clear how long of a delay the courts would find reasonable.

Under Missouri's existing law, a doctor, nurse, counselor or social worker must first provide women information about medical risks and alternatives to abortion and offer them an opportunity for an ultrasound of the fetus.

The new law means a woman wanting an abortion Friday would have to undergo a consultation on Tuesday. But in some cases, a woman could have to wait more than 72 hours, because the Planned Parenthood clinic in St. Louis doesn't perform abortions every day. A woman undergoing a consultation on Thursday would have to wait five days until an abortion could be performed the following Tuesday, Gianino said.

To spare women from driving twice to its St. Louis abortion clinic, Planned Parenthood is offering consultations at its offices in suburban St. Louis, Springfield and Joplin, Missouri, and hopes to develop a network of additional counselors around the state, Gianino said. It also anticipates referring more women for medication abortions at a suburban St. Louis clinic in Illinois, where there is no waiting law.

Although they have no immediate plans to sue, officials at Planned Parenthood and the ACLU left open the possibility of challenging the 72-hour waiting period after it has taken effect. That would require them to find a woman willing to serve as a plaintiff -- perhaps someone who is a victim of rape or incest or whose circumstances would make it particularly burdensome to wait, said ACLU attorney Tony Rothert.

"It's difficult to find the right people in the right situation at the right time who would be able to challenge the law effectively," Rothert said.

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