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  • WisBar News
    December 26, 2013

    Seventh Circuit: Equal Protection, Other Issues Lurk Behind State Abortion Law

    Dec. 26, 2013 – A Wisconsin law that prohibits doctors from performing abortions unless they have admitting privileges at a hospital within 30 miles of the doctor’s clinic remains blocked pending a trial on the merits, a federal appeals court has ruled.

    Along the way, majority and concurring opinions from a three-judge panel identify the various constitutional issues that may ultimately decide the fate of 2013 Wisconsin Act 37, passed by the Wisconsin Legislature and signed into law on July 5, 2013.

    Almost all abortions in Wisconsin are performed at one of four clinics whose doctors don’t have admitting privileges at hospitals within 30 miles of the clinic.

    Act 37 gave these doctors just two weekend days to obtain the hospital admitting privileges they needed to perform abortions in Wisconsin under the law. Without those privileges, the doctors faced up to $10,000 fines for performing an abortion.

    However, Planned Parent of Wisconsin and Milwaukee Women’s Medical Services quickly obtained a temporary restraining order blocking the law. William Conley, chief judge for the U.S. District Court for the Western District of Wisconsin, later granted a preliminary injunction to block the law until the case was tried on the merits.

    Wisconsin Attorney General J.B. Van Hollen and others charged with enforcing the law filed an appeal to lift the preliminary injunction.

    In Planned Parenthood of Wisconsin v. Van Hollen, No. 13-2726 (Dec. 20, 2013), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit found sufficient reason to prohibit enforcement of the law while the parties move towards a trial.

    “[I]t is beyond dispute that the plaintiffs face greater harm irreparable by the entry of a final judgment in their favor than the irreparable harm that the state faces if the implementation of its statute is delayed,” wrote Judge Posner, joined in a majority opinion by Judge David Hamilton.

    “For if forced to comply with the statute, only later to be vindicated when a final judgment is entered, the plaintiffs will incur in the interim the disruption of the services that the abortion clinics provide,” Posner continued.

    Judge Daniel Manion filed a concurring opinion, noting that a preliminary injunction was appropriate because the law gave doctors no time to comply. “[W]hether the injunction remains appropriate will be decided on remand,” wrote Manion, who used a 25-page concurring opinion to explain that “the legislature had a rational basis to enact the law.”

    Majority Prods Act 37

    The state says Act 37 is necessary to protect the health of women. Though not considering the merits, the panel viewed this rationale as somewhat suspect.

    “An issue of equal protection of the laws is lurking in this case,” wrote Judge Posner, noting that Wisconsin law does not require doctors to obtain admitting privileges to perform other surgical procedures at clinics. The law singles out abortions.

    “[T]he state seems indifferent to complications from non-hospital procedures other than surgical abortion, even when they are more likely to produce complications,” Posner wrote. “The rate of complications resulting in hospitalizations from colonoscopies, for example, appears to be three to six times the rate of complications from abortions.”

    The panel noted the state’s report that in 2012, complications arose in one out of every 608 abortions, 11 complications out of the 6,692 abortions reported.

    Meanwhile, the law requires doctors to apply for hospital admitting privileges, which can take months. And the hospitals have discretion to choose, based on various criteria, whether to approve the privileges. Even though federal law prohibits hospitals who receive federal money from denying privileges on the basis that a doctor performs abortions, the panel explained, the law sets up the potential for “pretextual” denials.

    If the law was deemed enforceable, “requests for such privileges would have encountered resistance at Catholic hospitals – and perhaps at other hospitals as well, given the widespread hostility to abortion and the lack of any likely benefit to a hospital from granting such privileges to an abortion doctor,” wrote Judge Posner.

    The panel recommended that the district judge appoint a neutral medical expert to testify on the medical and statistical evidence on abortions “to resolve the clash of the warring party experts” who may bring strong biases that cloud their judgment.

    Manion Concurs, Says Law Has Rational Basis

    Judge Daniel Manion agreed that a preliminary injunction was appropriate, but wrote a concurring opinion to explain that the legislature had “a rational basis to enact the law.”

    Manion explained that states may regulate abortions so long as there’s a rational basis for the regulation that does not impose undue burdens on women seeking abortions.

    “Wisconsin’s admitting-privileges requirement is reasonably designed to promote the state’s legitimate interest in women’s health,” wrote Judge Manion.

    Manion noted surgical community support for the principle that physicians performing office-based surgeries have admitting privileges at hospitals. He also said Wisconsin is free to impose admitting privileges on abortion doctors only.

    “[T]here is no mandate that state legislatures uniformly regulate medical procedures – with higher or even the highest incidents of complications,” he wrote. “Wisconsin had a perfectly good reason for addressing abortion first – namely, the Gosnell scandal.”

    Manion was referring to the Philadelphia abortion doctor who was convicted for first-degree murder in the death of infants killed under his egregious health care practices.

    In addition, Judge Manion argued that the law does not place undue burdens on women, because doctors can still seek admitting privileges, and any increased cost, delay, or travel required to obtain an abortion does not rise to the level of undue burden.


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