“The federal court in Jefferson City…entered a preliminary injunction against the State of Missouri Department of Health enjoining it from revoking Planned Parenthood’s state license for its clinic in Columbia, Missouri…”
From Judge Nanette Laughrey’s December 28, 2015 order:
In mid-July 2015, the Missouri Senate convened the Senate Interim Committee on Sanctity of Life, chaired by Senator Kurt Schaefer, to investigate Planned Parenthood’s presence in Missouri. The Committee conducted an investigation into PPKM’s licensing and the hospital privileges of the doctor performing abortions at PPKM’s facility in Columbia, Missouri.
The doctor performing abortions at PPKM held privileges at the University of Missouri Heath Care under the hospital’s “refer and follow” category of privileges. On August 17, 2015, Senator Schaefer sent a letter to then University Chancellor R. Bowen Loftin warning Chancellor Loftin that,
For decades the citizens of the state of Missouri have gone to great lengths to ensure that their taxpayer dollars never enable abortion services in this state. The University of Missouri system is a publically funded entity which last year alone received approximately one half of one billion taxpayer dollars from the State of Missouri. Whether DHSS is relying on the agreement granted by the University, as a publically funded entity, to Dr. McNicholas in order to enable the abortion license issuance is a matter of substantial public interest and concern. Additionaly [sic], such circumstance may also run afoul of Section 188.205, RSMo, which prohibits the use of public funds for the assistance or promotion of abortion procedures.
[Doc. 6-2, p. 2]. Senator Schaefer also serves on the Senate Appropriations Committee. On September 24, 2015, the University announced that effective December 1, 2015, it would eliminate the “refer and follow” category of privileges held by PPKM’s physician.
The next day, on September 25, 2015, PPKM President and Chief Executive Officer Laura McQuade received a letter from DHSS Administrator John Langston informing her that the University’s elimination of the “refer and follow” privileges meant that PPKM’s Columbia facility would not be in compliance with state licensure mandates as of December 1, 2015. Mr. Langston warned Ms. McQuade that the facility’s ASC license2 would be revoked on December 1 if the facility did not satisfy the hospital privileges requirement by December 1. [Doc. 6-1, p. 13]. On November 25, 2015, Ms. McQuade received a second letter from Mr. Langston stating that DHSS had not been notified of PPKM’s ability to satisfy the physician privileges requirement and that the Department was revoking the center’s license effective as of the center’s close of business on November 30, 2015.
….The record also reflects that PPKM was treated disparately as a result of animus toward PPKM. Unlike is customary at DHSS, the September 25 notice of deficiencies letter was drafted at levels high above Mr. Langston, who has responsibility over ASCs at DHSS and whose staff would normally be in charge of generating notices of deficiencies and overseeing plans of correction submitted by ASCs. [Doc. 33-3, p. 13 (Individual Dep. John Langston, at 37:1-9)]. Mr. Langston suggested that DHSS feared retaliation from Senator Schaefer if it did not act in accordance with the senator’s goals, as Senator Schaefer both chaired the Senate Interim Committee on Sanctity of Life and sat on the Senate Appropriations Committee. [Doc. 33-3, p. 9-10 (Individual Dep. John Langston, at 29:10-30:19)]. Prior to sending the September 25 letter, DHSS received many communications from Missouri legislators, right to life advocacy groups, and the press regarding PPKM’s licensing and the procedures governing the license. [See Doc. 33-2, p. 4-27, 75-83]. While these communications underscore the extent to which PPKM is a disfavored institution in Missouri, they provide no rational justification for the disparate treatment afforded the institution in addressing its licensing deficiency.
DHSS contends that PPKM cannot demonstrate an equal protection violation because it is not similarly situated to other ASCs. The Court addressed this argument above and concluded that it is incorrect. The Department’s only other argument is that its revocation was based on objectively verifiable criteria which indicated that PPKM no longer complies with the regulatory requirements to function as an ASC which makes the decision sufficient to withstand rational basis review. However, the circumstances surrounding the revocation suggest that the way the revocation was undertaken was “the product solely of animus.” Gallagher v. City of Clayton, 699 F.3d 1013, 1021 (8th Cir. 2012). While DHSS’s decision to revoke the license can be justified based on PPKM’s inability to satisfy the requirements of 19 C.S.R. § 30-30.060(1)(C)4 and Mo. Rev. Stat. § 188.080, these violations are, as discussed above, less significant than SCCC’s violations, which ran afoul of 19 C.S.R. § 30-30.020(1)(A)14-15, (B)1, 3, 6-7, 12-13, (C)7, 9, (E)3, (F)3, (H)2, (K)4-5, and Mo. Rev. Stat. § 660.317.
That is not to say that DHSS has no rational basis for enforcing 19 C.S.R. § 30-30.060(1)(C)4 and Mo. Rev. Stat. § 188.080. Clearly the Department has a strong interest in enforcing the statutes and regulations promulgated to govern licensing of ASCs. However, there must be a rational basis for the course of enforcement being undertaken by the Department. DHSS may not target individual disfavored institutions by insisting upon rigid regulatory compliance rejected by the statutory enforcement framework and the Department when dealing with more egregious deficiencies. Here DHSS has presented no rational basis to justify its treatment of PPKM.
For the reasons set forth above, Plaintiff’s motion for preliminary injunction, Doc. 5, is granted. Defendant is enjoined from revoking Plaintiff’s ASC license pending final resolution of this case.
Within 10 days, the parties will file a proposed scheduling order which ensures the final resolution of the case on the merits by May 1, 2016.
That’s quite interesting don’t you think? But then, we’re not at all surprised.
An open letter to MU Chancellor R. Bowen Loftin (September 26/October 2, 2015)