In a recent article, NRL News Today discussed a split decision by the 7th Circuit Court of Appeals, which overturned Wisconsin’s law requiring abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic.
A reconsideration of the 2-1 decision is warranted for two key reasons.
Such a stipulation is a component of the Texas legislation that the Supreme Court has consented to consider. Consequently, the resolution will be one that the justices will meticulously peruse.
Furthermore, the 7th Circuit majority opinion, authored by Judge Richard Posner, is being regarded as a definitive and authoritative pronouncement that is so groundbreaking and insightful that proponents should consider abandoning their legal pursuits and retiring to their homes.
In point of fact, Posner’s argument is extremely weak, as the withering dissent by Judge Daniel Manion makes abundantly clear. The 25-page dissent, which begins on page 30, should be read in its entirety; it is of considerable merit.
Judge Manion makes several important distinctions that the Supreme Court should consider as it considers Texas’ H.B. 2.
First, Judge Manion says that Judge Posner misunderstands the legal standard for Wisconsin’s Act 37.
In accordance with 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. Rather than shifting the burden to the state to provide reasons for the enactment of the law in question, it is our obligation to uphold a law that regulates abortion where there is a rational basis to act, provided that the law does not have the effect of imposing an undue burden on a woman’s ability to make the decision to choose abortion.
Here, the court majority sets this burden of proof in the wrong direction. In the context of rational basis review, courts are required to presume the validity of the law in question and uphold it so long as the law is rationally related to a legitimate state interest.
Judge Manion explains in detail why the admitting-privileges requirement is reasonable. Act 37 does not impose an undue burden.
Manion notes that at least 19 women who had abortions at Planned Parenthood clinics in Wisconsin were hospitalized for complications between 2009 and 2013. “Safety is important in healthcare,” Manion writes. “Abortion, which is less regulated than most other areas of medicine, also needs to be safe.”
He goes on to say that the Supreme Court has said that states have a right to make sure that abortions are done safely. Manion then explains why the admitting privileges requirement is good for women’s safety. He starts by saying that different medical groups don’t like Act 37.
In 2003, the American College of Surgeons, along with the American Medical Association and the American College of Obstetricians and Gynecologists, released a statement listing several principles. One of these was that doctors performing office-based surgery should have hospital admitting privileges.
Manion keenly observes
It is perplexing that the AMA and ACOG have joined a joint amicus brief arguing that Wisconsin’s admitting-privileges law is unconstitutional. However, their brief makes no mention of their 2003 statement or their sudden, yet convenient, disavowal of one of their “core principles” related to patient safety. From the testimony presented in court, it appears that the plaintiff doctors have determined that admitting privileges are only desirable to the extent that they do not result in members of their guild becoming ineligible to perform abortions.
He offers numerous additional reasons why the admitting-privilege requirement enhances women’s safety, including continuity of care (which pro-abortionists dismiss lightly) and (quoting another circuit panel’s decision) “credentialing of physicians beyond initial licensing and periodic license renewal.” However, does Act 37 constitute an “undue burden”? Here Manion is devastating. Most abortionists practicing in Wisconsin’s PPFA were able to secure admitting privileges.
What, then, constitutes an “undue burden”? In this case, it is the inability of two abortionists at another abortion clinic, which performs late abortions, to secure the requisite admitting privileges. This places a greater burden on PPFA and, by extension, women seeking abortions.
Manion addresses a point that has been raised in other court challenges to similar state laws: the argument that if there is no abortion clinic within convenient reach of the woman, this represents an undue burden. He provides a summary of the haphazard manner in which two abortionists from Affiliated Medical Services (AMS) in Milwaukee attempted to secure admitting privileges.
This was not a particularly concerted effort. Manion notes that AMS has four abortion clinics in Wisconsin, two of which are located in Milwaukee. Even if AMS ceased operations, approximately 98% of women in Wisconsin seeking abortions prior to 18.6 weeks would need to travel a mere 1.3 miles to reach PPFA’s Milwaukee clinic.
One might consider the possibility of obtaining a late-term abortion. Manion writes, “Turning toward distance rather than toward the governor’s mansion, Chicago is approximately 93 miles from Milwaukee–or a one-hour and forty-minute drive.” Other circuit courts have found that much greater distances did not constitute an “undue burden.” Judge Manion’s conclusion is as follows:
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 women’s health and safety. There is no question that Wisconsin’s admitting-privileges requirement protects women’s health and welfare.
The requirement helps ensure that abortionists are properly credentialed and qualified. It also works with Wisconsin’s ultrasound requirement to help women make informed decisions. There is no indication that the requirement would make it difficult for women to access abortion providers in their area. Planned Parenthood has shown that Wisconsin hospitals are willing to grant admitting privileges to qualified physicians who perform abortions. This requirement is rational and does not impose an undue burden. I dissent.
Daniel Miller is responsible for nearly all of National Right to Life News' political writing.
With the election of Donald Trump to the U.S. presidency, Daniel Miller developed a deep obsession with U.S. politics that has never let go of the political scientist. Whether it's the election of Joe Biden, the midterm elections in Congress, the abortion rights debate in the Supreme Court or the mudslinging in the primaries - Daniel Miller is happy to stay up late for you.
Daniel was born and raised in New York. After living in China, working for a news agency and another stint at a major news network, he now lives in Arizona with his two daughters.
