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  • WisBar News
    November 24, 2015

    Federal Appeals Court Strikes Down Wisconsin Abortion-related Restriction

    Joe Forward

    Nov. 24, 2015 – A provision of state law that prohibits medical doctors from performing abortions at clinics without admitting privileges at a hospital within a 30-mile radius is unconstitutional, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In July 2013, Gov. Scott Walker signed 2013 Wisconsin Act 37, which imposes penalties on doctors who perform abortions without admitting privileges nearby.

    A violation can result in a $10,000 maximum fine. In addition, doctors who perform or attempt to perform abortions in violation of Act 37 can be civilly liable for damages to patients, fathers, or grandparents, and face additional punitive damages up to $10,000.

    Planned Parenthood of Wisconsin and Milwaukee Women’s Medical Services, which operated the only four abortion clinics in Wisconsin, immediately filed suit claiming Act 37 was unconstitutional. The plaintiffs sought remedies under 42 U.S.C. section 1983.

    A federal district court judge in the Western District of Wisconsin granted a preliminary injunction, which halted enforcement of Act 37’s provision on admitting privileges. The federal appeals court in 2013 affirmed the preliminary injunction pending a full trial.

    After a trial, Judge William Conley imposed a permanent injunction against enforcement of that part of the statute, which also requires that women receive ultrasounds before having an abortion and be provided with a means to visualize any fetal heartbeat and review ultrasound images that depict external features or internal organs. That portion of the statute was not at issue in the case, only the admitting privileges provision.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The defendants, including Wisconsin Attorney General Brad Schimel, appealed the permanent injunction. The defendants argued that the provision requiring admitting privileges at a nearby hospital is constitutional because it protects the health of women.

    But in Planned Parenthood of Wisconsin et al. v. Schimel, No. 15-1736 (Nov. 23, 2015), a three-judge panel for the Seventh Circuit Court of Appeals affirmed (2-1), concluding that the restriction unconstitutionally infringes on a woman’s right to have an abortion.

    As it stands, states cannot burden a woman’s right to an abortion without a rational relationship to the protection of women's health. Thus, the court examined whether the law was constitutionally justified in the name of women’s health.

    In an opinion written by Appeals Court Judge Richard Posner and joined by Judge David Hamilton, the 2-1 majority noted that a statute can be unconstitutional, even if not irrational, if a burden on individual rights is excessive in relation to the benefits likely to be conferred.

    Majority Questions Deadline

    The panel noted that Act 37 effectively prohibited doctors from obtaining admitting privileges at a hospital within 30 miles. Only doctors with existing privileges at local hospitals, on the effective date of the law, could perform the procedure at their clinics.

    The law was enacted on Friday, July 5, 2013. It became effective on Sunday, July 7, 2013, meaning doctors had basically one day to obtain the required admitting privileges.

    The majority noted that it generally takes doctors a minimum of one to three months to obtain admitting privileges at hospitals, and often much longer.

    In addition, Judge Posner noted, “hospitals are permitted rather than required to grant such privileges, and some may be reluctant to grant admitting privileges to abortion doctors because there is great hostility to abortion in Wisconsin. …”

    Other states that passed similar laws allowed much more time for doctors to obtain the required hospital admitting privileges, Posner noted, and doctors at two of Wisconsin’s four abortion clinics did not have the admitting privileges required by the law. Thus, without the injunction that was issued early on, those clinics would have closed.

    Although the law was halted, giving doctors more time to obtain the privileges, Judge Posner noted that the Wisconsin Legislature must have intended to force the clinic closures when passing the law, since it gave those doctors no time to comply:

    “The fixing of such a short deadline … could be justified consistently with the Supreme Court’s abortion jurisprudence only if there were reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges. The district court correctly found that there is no reason to believe that.”

    On the contrary, the majority said the law could endanger women if fewer clinics are available to provide abortions as a result of admitting-privilege restrictions.

    "[T]he longer the waiting list for an abortion, the more women who want to have early-term abortions will perforce end up having late-term ones, which are more dangerous," Posner wrote.

    Hospital Care Still Available, Few Complications

    The majority noted that women experiencing complications from an abortion will receive medical care at the nearest hospital, regardless of whether their abortion doctor had admitting privileges at the hospital or not. Hospital physicians will provide the care.

    “As it happens, complications from an abortion are both rare and rarely dangerous – a fact that further attenuates the need for abortion doctors to have admitting privileges,” wrote Judge Posner, noting studies that found complication rates below one percent.

    The panel noted that Wisconsin law does not require doctors to have admitting privileges at nearby hospitals in order to perform other procedures at clinics, including other invasive procedures that are medically similar to abortion.

    “And that is the case even for procedures performed when the patient is under general anesthesia, and even though more than a quarter of all surgical operations in the United States are now performed outside of hospitals,” Judge Posner wrote.

    Judge Posner also noted that the “weird private civil remedy” for violations that fathers and grandparents may pursue under Act 37 undermines the defendants’ argument that the law is rationally related to the health and safety of women who seek abortions.

    “Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority,” Judge Posner wrote.

    Note: On Nov. 13, 2015, the U.S. Supreme Court agreed to hear Whole Woman’s Health v. Cole. In that case, the Court will consider a Texas law that also requires abortion doctors to have admitting privileges at hospitals within a 30-mile radius and requires abortion clinics to have facilities equal to an outpatient surgical center.

    The U.S. Court of Appeals for the Fifth Circuit upheld the Texas law, enacted in 2013, but the nation’s high court imposed a delay on enforcement pending appeal.


    Judge Daniel Manion dissented. He concluded that requiring doctors to have admitting privileges at a nearby hospital is a restriction with a rational basis and the defendants were not required to justify the regulation’s rationale through empirical evidence. Rather, the plaintiffs were required to prove the restriction is irrational, and did not do so.

    “Under well-established Supreme Court precedent, the state may constitutionally regulate abortion so long as it has a rational basis to act and does not impose an undue burden,” he wrote. “Because Wisconsin’s admitting-privileges requirement satisfies this standard, I dissent.”

    “There is no question that Wisconsin’s admitting-privileges requirement furthers the legitimate, rational basis of protecting women’s health and welfare,” he wrote. “Among other benefits, the requirement promotes continuity of care and helps to ensure that abortionists are properly credentialed and qualified.”

    Judge Manion noted that between 2009 and 2013, at least 19 women who sought abortions at Wisconsin clinics received hospital treatment for complications, and at least eight from 2009 to 2014 were transferred directly to hospitals for serious complications.

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