Missouri Judge Pulls State Support for Planned Parenthood

By Randall K. O'Bannon, Ph.D., NRL-ETF Director of Education and Research

A Missouri Circuit Court judge has ruled that two Missouri Planned Parenthood affiliates, which together operate over a dozen clinics scattered from St. Louis on the eastern border to Kansas City on the west, are ineligible to receive state family planning funds because they failed to adequately separate their family planning operations from their provision of abortion and abortion referrals. This is in violation of a 1999 state health department appropriations measure.

In his November 16 opinion Judge Byron Kinder not only kept two of Planned Parenthood's Missouri affiliates - - Planned Parenthood of the St. Louis Region and Planned Parenthood of Kansas and Mid-Missouri - - from receiving future state funds, but also ordered them to return the $105,750 in tax money, plus interest, they had already received from the state since July 1.

The ruling resulted from years of tireless efforts by grassroots pro-lifers and pro-life legislators to insure that no public monies given to Planned Parenthood, Missouri's largest abortion provider, go to subsidize or promote abortion.

For years, Planned Parenthood received hundreds of thousands of state tax dollars annually under the rubric of "family planning." While many pro-life groups, including NRLC, take no position on contraception (i.e., the prevention of fertilization), the concern has always been that groups such as Planned Parent-hood, who treat abortion as a part of family planning, can use such funds to promote or subsidize abortions, especially if there were no explicit prohibitions in the law against their doing so.

Opponents argued that state family planning support to Planned Parenthood under these circumstances amounted to state support and endorsement of Planned Parenthood's abortion activities. Going back as far as 1993, they had fought to prohibit family planning funds from going to any organization that performs or promotes abortion as a method of family planning.

Budgets containing such restrictions were passed in 1995, 1996, and 1997, but were struck down in federal court. In 1998 the legislature was finally able to pass a budget with restrictions on family planning money that the courts would allow. But the February 1999 federal appeals court ruling also held that Planned Parenthood programs could continue to receive state funding as long as they had complete separation from the provision of abortion services.

Once the Columbia, Missouri, Planned Parenthood facility suspended abortion services, the state health department said it considered Planned Parenthood in compliance and continued to provide state funding even though Planned Parenthood clinics continued to make abortion referrals and two other sites performed abortions.

This angered pro-life legislators, who maintained that state health officials were deliberately misinterpreting the federal appeals court ruling.

With this ruling in mind, the restrictions that were written into the 1999 budget sought to close every possible loophole. The measure specifically prohibited the disbursement of family planning funds to any organization performing abortions, referring for abortions, having a similar name to an organization providing abortions, or sharing personnel, salaries, expenses, telephones, waiting rooms, office supplies, or any other facilities, equipment, or supplies with a group doing abortions.

Predictably, as soon as the budget was passed last June, Planned Parenthood filed a federal lawsuit challenging the budget language. In the following month, special assistant state attorney general Jordan Cherrick filed papers of his own in the U.S. District Court of Western Missouri asserting that Missouri Department of Health Director Maureen Dempsey was failing to uphold the law.

Cherrick also sued Planned Parenthood of St. Louis and Planned Parenthood of Kansas and Mid-Missouri, two of Planned Parenthood's largest affiliates in Missouri, in state court. The state health department was soon added as a party.

Cherrick charged that despite the clear language of the law, the state health department continued funding Planned Parenthood. The health department took the position that there was no illegal "sharing" as long as one division reimbursed another.

Cherrick argued that the interpretation was inconsistent with the plain meaning of the law, and undermined the legislature's clear desire to remove all direct and indirect state subsidies of abortion services.

The federal suits were put on hold while the state case against the two Planned Parenthood affiliates and the state health department was argued in the Cole County Circuit Court, the jurisdiction serving Jefferson City, Missouri's state capital. Judge Kinder heard oral arguments in October.

Judge Kinder's decision fully vindicated the position of pro-life legislators. In a powerful five-page opinion, Judge Kinder declared that the legislative language prohibiting state funds from going to organizations such as Planned Parenthood was "plain" and "unambiguous." He proceeded to list 13 specific ways in which Planned Parenthood of the St. Louis Region and Planned Parenthood of Kansas and Mid-Missouri engaged in "sharing" with "affiliated abortion providers" that rendered them ineligible to receive family planning funds under state law.

Kinder held that both the St. Louis affiliate and the Kansas and mid-Missouri affiliate were disqualified because they "directly refer[red] patients to abortion providers," "distribute[d] marketing materials about abortion services to patients," and shared similar names, facilities, expenses, salaries, and wages with their "affiliated abortion service provider[s]." The St. Louis affiliate, Kinder declared, even shared equipment with its "affiliated abortion service provider."

In addition to barring the Planned Parenthood affiliates from obtaining the $697,650 in family planning funds they were to receive from the state health department for the remainder of the fiscal year, Judge Kinder ordered both affiliates to reimburse the state, with interest, for all family planning monies they had already "improperly received" since the beginning of the fiscal year in July. This totaled $79,950 for the Kansas and mid-Missouri affiliate and $25,800 for the St. Louis Planned Parenthood affiliate.

In addition, Kinder also permanently enjoined Department of Health Director Dempsey from "issuing contracts, requests for proposals, or appropriating any family planning funds" to either of the two Planned Parenthood affiliates. He also instructed the Planned Parenthood affiliates not to apply for state family planning funds "unless and until they are in full compliance" with the requirements of the law.

Pro-life state Representative Gary Burton (R), one of the General Assembly members who took the lead in passing the budget language, told the Joplin Globe (11/17/99) that "the judge said what the legislature has said all along, that the state can restrict how family planning money is spent.

"It should not be commingled and used for providing abortions or referring for abortions," he added. "The governor has erred in directing the Department of Health to spend money in violation of the law."

BACKGROUND

Pro-abortion Governor Mel Carnahan (D) had reluctantly signed state budgets containing those limits, bowing to overwhelming support for the restrictions in the state legislature. Yet Carnahan never actively sought to implement the restrictions keeping state family planning money from going to subsidize or promote abortion.

Instead, Carnahan (who is running against pro-life U.S. Senator John Ashcroft) supported the efforts of Planned Parenthood and the state health department to thwart the will of the legislature and circumvent those provisions.

Missouri State Attorney General Jay Nixon chose not to appeal a federal district court's decision striking down limits placed on 1995 and 1996 family planning appropriations. Subsequently, he did not aggressively defend the limitations the legislature put in place in 1997. An attempt by 10 pro-life lawmakers to themselves appeal the case failed when the federal appeals court ruled that the lawmakers lacked standing.

In 1998, under pressure, Nixon agreed to hire outside legal counsel to represent the legislature's position. (Nixon chose to represent the state health department, whose interests have consistently conflicted with pro-life lawmakers.) St. Louis lawyer Jordan Cherrick was brought on board to defend the state law in court. It was Cherrick's suit against Planned Parenthood and the state health department that precipitated Kinder's ruling.

Not surprisingly, Planned Parenthood, the governor's office, and state health department officials decried the judge's decision and vowed appeals, threatening dire consequences for the state if the decision stands.

In a statement issued Novem-ber 16, Roger K. Evans, national litigation director for Planned Parenthood, said, "Planned Parenthood will pursue all possible legal avenues in both the state and federal courts to reverse this troubling decision, to protect its right to participate in this program, and to assure that the public health needs of the people of Missouri are met."

Missouri Department of Health Director Dempsey then sought to delay implementation of the ruling. She told the Kansas City Star (11/23/99) that the decision could cause the state to have to shut down its entire family planning program for up to a month while contracts were rewritten. But Missouri pro-life lobbyists said the health department's family planning contracts could be rewritten in a matter of days if Dempsey wanted to. In June it took the department only three days after the governor signed the appropriations bill to issue new family planning contract language.

Attorney Cherrick labeled Dempsey's efforts an "attempt to hold hostage the recipients of family planning funds not affected by this order" (Kansas City Star, 11/23/99). He told the St. Louis Post-Dispatch, "Planned Parenthood could be entitled to state family planning funds if it would only comply with the law" (11/16/99).

Judge Kinder has denied requests by the state health department to delay implementation of the ruling, though state attorneys have indicated they will appeal Kinder's decision to the state's Western District Court of Appeals in Kansas City. Planned Parenthood representatives indicate the group is currently seeking public donations to offset the loss of state funding.

Samuel Lee assisted in the research for this report.