Split appeals court panel strikes Wisconsin law requiring abortionists to have admitting privileges at local hospital

AG will ask Supreme Court to review decision

By Dave Andrusko

Judge Richard Posner

Judge Richard Posner

Had you been in attendance when a three-judge panel of the 7th Circuit Court of Appeals heard oral arguments October 1, the one thing for sure you knew was that Judge Richard Posner would lambast Wisconsin’s law that requires abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic.

And that’s what he did yesterday as a divided panel found Act 37 unconstitutional, 2-1.

“What makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions regarding women’s health — and the abridgment challenged in this case would actually endanger women’s health,” wrote Judge Posner in a 30-page decision written on behalf of himself and Judge David Hamilton.

By contrast, Judge Daniel Manion wrote a 25-page dissent that honed in on the weaknesses on Posner’s (and other judges’) attack on the admitting privileges requirement.

A spokeswoman for the Wisconsin Attorney General said Brad Schimel intends to ask the U.S. Supreme Court to review the decision.

As NRL News Today reported, on November 13, the United States Supreme Court agreed to take up a lawsuit brought by a coalition of abortion providers that challenges two provisions of H.B. 2, an omnibus 2013 Texas law. One of those provisions is a similar admitting privileges requirement. The other is that abortion clinics meet the same building standards as ambulatory surgical centers.

Those provisions of H.B. 2 had been upheld by the 5th Circuit Court of Appeals in New Orleans.

 Judge Daniel Manion

Judge Daniel Manion

Judge Manion’s dissent was thoughtful and complete. In his concluding paragraph, he adroitly summarized the case against the law’s critics:

I regret that today’s decision marks the latest chapter in our circuit’s continued misapplication of the Supreme Court’s abortion jurisprudence. By a majority of one, the court has eliminated a measure that Wisconsin’s elected officials have enacted to protect the health and safety of women who choose to incur an abortion. There is no question that Wisconsin’s admitting-privileges requirement furthers the legitimate, rational basis of protecting women’s health and welfare. Among other benefits, the requirement promotes continuity of care and helps to ensure that abortionists are properly credentialed and qualified. It also works in tandem with Wisconsin’s ultrasound requirement to facilitate informed decision-making on the parts of doctor and patient alike. Nor is there any indication that the requirement would pose a substantial obstacle to women’s ability to access abortion providers in their area. As Planned Parenthood’s successful applications for admitting privileges demonstrate, the hospitals of Wisconsin are perfectly willing to grant admitting privileges to qualified physicians who perform abortions in their state. Because Wisconsin’s admitting-privileges requirement has the rational basis of promoting the health and safety of pregnant women who have decided to incur an abortion, and because it does not impose an undue burden under Casey, I dissent.

Act 37 became law in June 2013. The admitting privileges provision was challenged in federal court by Planned Parenthood of Wisconsin, Affiliated Medical Services, and the ACLU of Wisconsin the following month.

The law also provided that women seeking abortions obtain an ultrasound. That provision was never challenged in court and remains in effect.

“The state’s two abortion providers, Planned Parenthood of Wisconsin and Affiliated Medical Services, challenged the law, contending it would force Affiliated’s clinic in Milwaukee to close because doctors couldn’t get admitting privileges,” according to Milwaukee Journal Sentinel reporter Patrick Marley

The abortion clinics argued that if that happened, the state’s other three abortion clinics “wouldn’t be able to absorb Affiliated’s case loads.” Those clinics, Marley added, “all run by Planned Parenthood, are in Milwaukee, Madison and Appleton.”

U.S. District Judge William Conley blocked the law almost immediately after it passed and then last March struck it down as unconstitutional.

“The 7th Circuit Court of Appeals’ decision yesterday is detrimental to providing continuity of care for women who suffer complications from an abortion,” said Heather Weininger, executive director of Wisconsin Right to Life. “Wisconsin Right to Life is disappointed that women will continue to not receive the care they need under these frightening circumstances.”

Weininger noted that within a year, abortionists at Planned Parenthood of Wisconsin were able to obtain admitting privileges in Appleton, Madison, and Milwaukee. “Other abortionists in Wisconsin are still attempting to acquire them – they have been denied partly because of the lack of peer review of their abortion practice,” Weininger said.

“We now eagerly look to the Supreme Court, which already has decided to review the challenge to Texas’ admitting privileges law, not only for the health and safety of women in Wisconsin, but for women all around the country,” she added.

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