Missouri argues it shouldn’t pay Planned Parenthood’s legal fees in licensing dispute

The hearing stems from the state health department’s refusal in 2019 to renew the license of the state’s last remaining abortion facility

By: - March 9, 2022 8:00 am

The exterior of Planned Parenthood Reproductive Health Services Center is seen on May 31, 2019 in St. Louis. The facility is Missouri’s sole abortion provider (Photo by Michael Thomas/Getty Images).

Its effort to deny Planned Parenthood a license to perform abortions in Missouri was unsuccessful, but the state health department argued Tuesday in court that it still shouldn’t have to pay the clinic’s legal fees. 

An administrative hearing commission ruled in May 2020 that the state wrongly denied Planned Parenthood’s St. Louis clinic, the state’s last remaining abortion facility, its license. As a result, the state is on the hook for roughly $146,000 in legal bills Planned Parenthood amassed defending itself. 

Attorneys representing the Department of Health and Senior Services, which licenses and inspects abortion facilities, on Tuesday asked Cole County Circuit Court Judge Jon Beetem not to force it to pay Planned Parenthood’s legal fees, arguing the investigation was justified. 

DHSS also went further by asking Beetem to allow it to pursue discovery in the case to determine more details about Planned Parenthood’s corporate structure, despite the commission’s ruling.

“This is not the little guy we’re dealing with here,” said Missouri Solicitor General John Sauer, who argued on behalf of DHSS. “This is the thousand-pound gorilla when it comes to litigation resources.”

Richard Muniz, an attorney arguing on behalf of Reproductive Health Services of Planned Parenthood of the St. Louis Region, argued that the department was attempting to relitigate the commission’s decision, even though DHSS chose not to appeal and eventually granted the clinic its license.

“In what should be a straightforward fees case, the department now seeks wide-reaching discovery on irrelevant matters,” Muniz said, “including up to 10 years of three organizations’ corporate records, financials, policies and procedures, internal communications, along with corporate depositions of each organization.”

Tuesday’s hearing stemmed from a case that has been ongoing since 2019, after the state health department launched an investigation into complications following abortion attempts and refused to renew the license of Planned Parenthood’s clinic in St. Louis.

The hearing garnered headlines when former DHSS Director Randall Williams’ testified that he maintained a spreadsheet to track women’s menstrual cycles who had visited the Planned Parenthood location in an attempt to investigate failed abortions.

The investigation was one of many efforts by Missouri lawmakers and state health officials to restrict access to abortion in recent years. The number of abortions in the state has steeply declined as the number of facilities that offer abortions has whittled down. In 2019, 1,471 abortions occurred in Missouri facilities compared to the 6,163 nearly a decade prior in 2010, according to state figures.

In May 2020, an administrative hearing commission ruled that the state had wrongly denied Planned Parenthood’s St. Louis clinic its license, and a month later DHSS granted the facility a license.

In February 2021, the commission ordered the state to pay Planned Parenthood’s legal fees but denied Planned Parenthood’s request that the state pick up other expenses from the case, like from travel and depositions. Planned Parenthood argued Tuesday those additional expenses should also be covered by the state.

DHSS appealed the legal fees decision, and on Tuesday attorneys argued that the department had met stipulations under state law that exempted them from having to pay Planned Parenthood’s fees.

Sauer and Maria Lanahan, deputy solicitor general, pointed to a provision in state law that stipulates fees shall not be awarded if the state’s position was “substantially justified or that special circumstances make an award unjust.”

Lanahan argued DHSS was justified in not awarding the clinic’s license because during the course of the department’s investigation some of the clinic physicians it sought to interview refused to participate. As a result, DHSS lacked the tools it needed to verify that the clinic was in compliance, Lanahan said, and believed the clinic was violating state regulations.

Lanahan went on to tick through the violations that DHSS believed clinic staff had committed, with Beetem reminding her that, “we’re not here to relitigate what happened.”

Lanahan ultimately argued that Planned Parenthood should have requested facility staff participate in investigators’ interviews, and if they refused, not allow those staff to keep working at the facility.

Beetem asked if it’s the state’s belief that the clinic had a legal obligation to compel its employees to submit to an investigation, “even if it would expose them to criminal liability.”

To get its license, Planned Parenthood needed to prove it was in compliance — which means allowing investigators to examine staff if there were questions about the care provided, Lanahan said.

Muniz said that of the physicians DHSS sought to interview, two were medical residents who had already completed their training — leaving it unclear how the clinic would have compelled them to sit for an interview.

Muniz also noted DHSS declined other offers Planned Parenthood made to interview staff, and that the department could have pursued other paths to obtain records and additional interviews in its investigation, like through the hospitals involved in some patients’ treatment 

“The record is clear,” Muniz said, “the department willfully turned a blind eye to the evidence unsupportive of its desired outcome.”

Sauer also argued that Reproductive Health Services was essentially one in the same with its parent organizations, like Planned Parenthood of the St. Louis Region and Planned Parenthood Federation of America. The distinction between the organizations was “a sham,” Sauer said, and would call into question whether Reproductive Health Services fits the definition of a party to the case that could be granted fees.

However, because the commission did not allow DHSS to pursue discovery, Sauer argued the state could not prove that was the case.

“There’s no right to seek a discovery on what is really a meritless theory,” Muniz said.

Beetem took no immediate action on the case during Tuesday’s hearing.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Tessa Weinberg
Tessa Weinberg

Tessa Weinberg covered education, health care and the legislature with the Missouri Independent. She previously covered the Missouri statehouse for The Kansas City Star and The Columbia Missourian, where her reporting into social media use by the governor prompted an investigation by the Attorney General’s office. She also covered state government in Texas for The Fort Worth Star-Telegram.