Discussion: Judge Blocks Missouri From Pulling Planned Parenthood Clinic's Abortion License

Discussion for article #243286

This area is covered by the 8th Circuit Court of Appeals.

The neighboring 7th Circuit recently issued a 2:1 decision [ http://tiny.cc/1gtx6x ] that, if not completely on point, has reasoning in it that completely encompasses the Missouri situation.

U.S. federal District Court trial level judges are bound by on-point decisions of the SCOTUS and the Circuit Court that covers their territory. Beyond that, there’s a judicial custom - more than a tradition, less than a binding rule - that requires a judge in the position that FCJ Laughery is in to either ‘defer’ [like default] to the decisions of other federal Circuit Courts, especially those on point or encompassing the entire issue, unless they can find some relevant fact that distinguishes them from what’s before the trial level judge.

AFAIK what the Missouri AG is arguing is that PP had the chance to seek judicial review of the legislation and didn’t, so it’s stuck with the consequences.That’s almost entirely a procedural objection and I just don’t know enough about how the Missouri legislature went about this to know whether and to what extent it might hold water. I SUSPECT that the Missouri legislature process was quite different from how the Wisconsin legislature proceeded to come up with the subject-matter of the 7th Circuit decision; for example, it’s possible that the way in which the Missouri legislature process went didn’t allow for judicial review unless and until the components of the legislation were activated - a VERY common feature of ALEC-inspired legislation, designed to hide controversial legislation ‘in plain sight’ as it were until public attention recedes, and then to force challengers into restrictions on standing to the specific component that’s been activitated. If that’s more or less what’s happened here in this Missouri case, then the Missouri AG is completely full of shit.


Did she lose her privileges because of the ‘ick’ factor? Or was it personal?

Wonder how many of the area’s other doctors have had their privileges revoked? Or was it personal?

Wonder how many of the health center’s current physicians are willing to provide abortions? Or is it because they’re afraid they’ll be singled out for abuse, harassment, or murder?

The first part of one sentence in Chancellor Foley’s statement:

However, as a state and federally funded university with a health system,

is irrelevant to the second part:

we are required to follow applicable state and federal laws.

Analysis: word fog
Diagnosis: Interim Chancellor Foley tastes like chicken

The decision of the executive committee of the medical staff of MU Health Care was clearly a political one. An official U of M press release on the decision to end the “refer and follow” category notes:

The review of MU Health Care policies and privileges was prompted by inquiries from various members of the legislature and public to MU’s chancellor.

The student newspaper went for truth over diplomacy:
Several members of the Missouri legislature prompted the review of MU Health Care’s policies and privileges, including Sen. Kurt Schaefer, R-Columbia.

Schaefer is chairman of the Missouri Senate Interim Committee on the Sanctity of Life, and has been harassing the University as part of his efforts to make safe and legal abortion unavailable to women in Missouri.

It appears to me that MU Health Care could have retained Dr. McNicholas’ privileges while eliminating the specific “refer and follow” category:

“Refer and follow privileges only allow physicians to access their own patients’ information,” said Steve Whitt, chief medical officer of MU Health Care and a member of the executive committee, in the release. “This level of access to patient information is already permitted by any referring provider, including those not on MU Health Care’s medical staff; therefore, the designation of refer and follow privileges was outdated and unnecessary.”

So why wouldn’t a doctor with “refer and follow” privileges be able to retain “refer” privileges if the “follow” part of the privileges had become redundant?

Management of MU Health Care appears to be setting up the next obstacle to any Planned Parenthood doctor getting admitting privileges:

As part of its review, MU Health Care is also proposing changes to its privileging process that will include additional review of the contributions applicants will make to MU Health Care’s multiple missions of providing exemplary patient and family-centered care, high-quality professional education and research.

As part of the decision-making process, the proposed changes have been forwarded to MU Health Care’s eligible voting medical staff members for comment. At the conclusion of the comment period, the executive committee will consider all information, including suggestions and comments from these members of the medical staff, prior to voting on these revisions.

The proposed changes to the Credentials Procedure Manual are intended to help officials confirm that providers who are not MU employees meet the qualifications for privileges while also contributing to the three missions of MU Health Care and the University of Missouri.

More or less follow your very technical explanation. Isn’t the rub really that the State is trying to use procedural gymnastics to deprive citizens of an established Constitutional right, leaving the question, do they have a sufficiently valid basis to do so? Beyond mere rational foundation hopefully?

Duh - Of course they have no rational basis!

Every physician in every hospital ER has admitting privileges and they do the admitting when a patient has complications from outpatient surgery as they have done in the past, as they are doing in the present, and as they will be doing tomorrow.

Do you people think that the ER physician is going to leave the patient dying while the outpatient surgeon is tracked down and comes over to the hospital?

The patient’s own doctor will consult about care with the attending physician assigned by the hospital, as they have done in the past, as they are doing in the present, and as they will be doing tomorrow.

If this was not merely a TRAP law why aren’t outpatient oral and plastic surgeons required ho have admitting privileges also?

Sheesh - How hard is this to understand?

Sounds like restraint of trade.

You lost me on “rational foundation”. As the 7th Circuit decision makes clear, there is NO “rational foundation” between a qualified licensed physician performing an abortion in a clinic setting versus a hospital setting - it’s just not that complicated or hazardous a procedure to justify requiring hospitalization. Similarly, and following the same logic, there’s no need for a qualified licensed physician performing abortions in a clinic to ALSO have hospital admitting privileges. So a law that requires either or both has no “rational foundation” in the first place. That’s why I THINK the Missouri AG is relying on a law that isn’t constitutional.

But this report suggests that’s not even the issue: that, somehow, this involves the clinic itself not having any licensed physician. And the MU involvement suggests that it doesn’t have one because MU is interpreting its legal obligation ‘to comply with BOTH federal and state law’, that is, it’s somehow not the STATE that’s imposing the effective ban but MU by obeying the state. And it APPEARS that the clinic is going with that view, that is, in choosing to proceed against MU instead of the state.

At this point, I feel a lot of sympathy for the judge in wanting to hear oral argument, because if I were the judge assigned to this, I’d have a BUNCH of questions.