By Dave Andrusko
WUMW, Milwaukee’s public radio station, reported this morning that, as expected, Attorney General Brad Schimel will file an appeal to the U.S. Supreme Court by today’s deadline asking the justices to review a state law requiring abortionists to have admitting privileges at a nearby hospital in case of emergencies.
As NRL News Today reported, on November 23, Wisconsin’s Act 37 was stricken by a divided panel of the 7th Circuit Court of Appeals, 2-1.
Judge Richard Posner, in a 30-page decision written on behalf of himself and Judge David Hamilton, wrote, “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.”
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.
On March 3, the United States Supreme Court heard oral arguments in a lawsuit challenging portions of Texas’ HB 2, the 2013 omnibus pro-life 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 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 [the 1992 Supreme Court case of] 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.