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Abortion-rights groups alarmed by St. Louis’ moving AG lawsuit to federal court

When the attorney general’s lawsuit challenging St. Louis’ plan to use federal funds to support abortion access was moved to federal court, it didn’t draw much attention.

The city requested the change in venue — from St. Louis Circuit Court to the U.S. District Court for the Eastern District of Missouri — in late July with little fanfare.

But the move set off alarms for abortion-rights advocates.

If the city loses in state court, the decision would have ramifications in Missouri. But a loss in federal court could echo across the country and further curtail abortion access, said Rachel Easter, senior counsel at the National Women’s Law Center, a Washington-D.C. based legal nonprofit.

“And of course, any federal court decision can make its way up to the Supreme Court, which is the very court that just overturned Roe and allowed the crisis in abortion access to happen,” said Easter, who would like to see the case decided in state court. “So we are hesitant to see any case go to federal courts that could further restrict access, and we know that’s the end goal.”

Andrea Miller, president of the National Institute for Reproductive Health, a New York-based advocacy group that works to protect and advance reproductive health care access, said in a statement it’s critical for elected leaders to protect abortion care, but pressed for St. Louis to work hand in hand with groups on the ground.

“It’s important for allies to remember that intent and impact are very different,” Miller said in a statement. “We urge St. Louis city leaders to work closely with impacted individuals and organizations who are acting to mitigate the harms of abortion bans before making decisions that will impact their work and, potentially, abortion access work across the country.”

Pro-Choice Missouri, which helped craft the recently enacted St. Louis law, declined to comment.

Nick Desideri, a spokesman for St. Louis Mayor Tishaura Jones, also declined comment, citing the pending litigation. 

Missouri Attorney General Eric Schmitt filed the lawsuit in July, arguing St. Louis’ use of federal funds to support abortion access is illegal under state law. His spokesman declined to comment on concerns over the case being moved to federal court.

But in a rare instance of agreement between abortion-rights supporters and the anti-abortion attorney general, Schmitt is also pushing to get the case returned to state court.

In a motion filed last month to move the case back to state court, Schmitt’s office argued its lawsuit centers around alleged violations of Missouri law and that “there is no federal question at issue in this case.”

Funded with federal American Rescue Plan Act dollars, St. Louis’ newly-created Reproductive Equity Fund will direct $1 million to organizations providing logistical support, like to cover costs of travel or childcare, for those accessing abortions out-of-state. 

An additional $500,000 will be issued to organizations bolstering access to reproductive health care, like doulas and lactation support, and another $250,000 was allocated to cover administrative costs.

The bill was unveiled by the day Roe v. Wade was overturned and Schmitt enacted a trigger ban making nearly all abortions illegal in Missouri.

Jones signed Board Bill 61 into law in late July.

The city’s department of health opened applications for the fund last Friday, with contracts tentatively slated to begin at the end of October. The notice of funding availability stresses that under no circumstances can awarded funds be used “to fund, perform, or assist abortion procedures” or “to encourage or counsel an individual to have an abortion.”

Schmitt sued to block the law from going into effect hours after the bill was signed, arguing it violated state laws that prohibit public funds, employees and facilities from being used to assist or encourage access to abortions and “fails to account for the impact on unborn children.”

But in its counterclaim against Schmitt, Sheena Hamilton, the St. Louis city counselor, argued that state law that Schmitt cites violates the supremacy clause of the U.S. Constitution by frustrating Congress’ intent that local governments be able to spend Coronavirus Local Fiscal Recovery Fund dollars in ways that best suit their community’s needs. 

The city has both the flexibility and authority to allocate American Rescue Plan Act funds to provide logistical support for reproductive health care, it argued in a filing opposing Schmitt’s motion for a preliminary injunction. The city also alleged the state laws violate the First Amendment and Missouri Constitution.

The city has asked for the court to invalidate the state laws Schmitt sued under and prevent him from enforcing them, and has also moved for Schmitt’s lawsuit to be dismissed.

While the city and the attorney general’s office declined to elaborate on their legal strategies for the venue of the case, Marcia McCormick, an attorney and St. Louis University professor of law, said cases could be made for both sides.

State courts may be more amenable to arguments of the attorney general, an arm of the state government, rather than St. Louis, a subdivision of the state, McCormick said. But the lawsuit had been filed in St. Louis Circuit Court, which may be less friendly to Schmitt’s lawsuit than a court in Jefferson City might be, she said.

However, federal courts may also be more sympathetic to the city’s claim that the state is trying to exert control over the federal government and is violating the supremacy clause, McCormick said. But it does give the case a more straightforward path to the U.S. Supreme Court, where in recent history most cases “are coming from the federal circuit courts rather than state courts,” McCormick said.

Easter said if federal courts broadly expand the definition of assisting someone to get an abortion to include things like someone’s roommate driving them to a clinic or abortion funds helping pay for travel, it would threaten the few remaining options people in states like Missouri have to access abortions in the face of near-total bans and inspire similar restrictions in other states.

Ultimately, Easter said she feels the fundamental question in the case is around state law.

“The city has a broad latitude to determine how to use those federal funds during this public health emergency, and the attorney general is saying, ‘No, the way that you have done this violates state law,’” Easter said. “So it does seem appropriate for state courts to be interpreting Missouri state law here.”

Sam Lee, a longtime lobbyist for Campaign Life Missouri, said he’s not concerned whether the case is decided in federal or state courts.

“I’m confident that the position of the attorney general of the state of Missouri will be upheld, and that these funds cannot be used to assist abortion, as it’s stated in the statute,” Lee said. “It doesn’t make any difference to me. I’m not concerned about it one way or the other.”

If anything, the outcome can be hard to predict, Lee said, noting that the federal judge assigned to the case, Judge Audrey Fleissig, has surprised him in the past.

Fleissig was nominated by former President Barack Obama to the U.S. District Court bench and former Democratic U.S. Sen. Claire McCaskill had advocated for her to be confirmed by the U.S. Senate.

But Lee said that in 2018, Fleissig ruled in favor of the Archdiocesan Elementary Schools of St. Louis, the maternity home Our Lady’s Inn, and a business and blocked enforcement of provisions of a St. Louis ordinance that barred discrimination on the basis of someone’s reproductive health decisions.

“That’s counterintuitive of what I thought might have happened,” Lee said.

If the case stays in the Eastern District, it’s likely to be appealed to the Eighth U.S. Circuit Court of Appeals, where there’s little dispute the court has frequently ruled against abortion rights.

The Eighth Circuit, “on pro-life matters has been as strong if not stronger than any of the other circuits,” Lee said, “Maybe even stronger than the Fifth Circuit,” which encompasses Texas, Mississippi and Louisiana.

Fleissig has yet to rule on the attorney general’s motion to move the case back to state court.

This article by Tessa Weinberg is published by permission of The Missouri Independent.

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