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7th Circuit Hears Oral Arguments in Wis. Admitting Privileges Case

7th Circuit Hears Oral Arguments in Wis. Admitting Privileges Case

October 5, 2015 — A three-judge panel for the 7th U.S. Circuit Court of Appeals on Thursday heard oral arguments in a case challenging a Wisconsin admitting privileges law (Act 37), with the presiding judge expressing doubts about the law's constitutionality, the Milwaukee Journal Sentinel reports.

According to the Journal Sentinel, stakeholders are watching the case because several other states have imposed similar abortion restrictions, with courts blocking the laws in six other states. The issue is expected to be considered by the Supreme Court, although it is not clear which state law the high court would consider (Marley, Milwaukee Journal Sentinel, 10/1).

Background

The law states that doctors who provide abortions in Wisconsin must have admitting privileges at a hospital located within 30 miles of the facility where they practice. U.S. District Judge William Conley placed a temporary hold on the law in July 2013, after Planned Parenthood Federation of America and the American Civil Liberties Union challenged it in court.

Planned Parenthood of Wisconsin and Affiliated Medical Services, two abortion providers involved in the challenge, said the law would restrict access to abortion in Wisconsin (Women's Health Policy Report, 3/23). Specifically, they said the law would close the AMS clinic in Milwaukee, where the physicians do not have admitting privileges. While doctors at the Wisconsin Planned Parenthood clinics -- in Appleton, Madison and Milwaukee -- do have admitting privileges, the clinics would not be able to take on the increased patient load from the closure of the AMS clinic (Milwaukee Journal Sentinel, 10/1).

In March, Judge William Conley ordered a permanent injunction against the law, ruling that it violated the 14th Amendment. "The marginal benefit to women's health of requiring hospital admitting privileges, if any, is substantially outweighed by the burden this requirement will have on women's health outcomes due to restricted access to abortions in Wisconsin," he wrote. Further, Conley noted that there is no rational basis for treating physicians who perform abortions differently than those who perform other outpatient procedures that are associated with equal or greater risk.

Wisconsin Attorney General Brad Schimel (R) appealed Conley's ruling in April (Women's Health Policy Report, 4/8).

Presiding Judge Sharply Questions Law

The presiding judge on the panel, Judge Richard Posner, appeared to agree with Conley's assessment that the law is unconstitutional, the Journal Sentinel reports. "There is not a rational basis for your statute because it doesn't provide any health benefits for women seeking abortion," Posner said.

Posner said the law aimed to close abortion clinics, noting it was to take effect the Monday after the Friday it was signed. According to the Journal-Sentinel, it can take months for a doctor to obtain admitting privileges. Posner said, "It had nothing to do with women's health," adding, "That was a clear ... flouting of Roe vs. Wade."

Posner also countered the state's claims that the law would help women experiencing abortion complications. He explained that such patients are taken to the emergency room, and admitting privileges are not required for the emergency room physician to consult with the abortion provider. "You don't need admitting privileges to go to the hospital. You just go to the hospital," he said.

Separately, Judge David Hamilton asked the state about women having to cross state lines to access abortion care if any of the clinics in Wisconsin close under the law. Citing case precedent, he said states are not allowed to curb people's constitutional rights based on the assumption that those individuals can go to other states to exercise their rights.

Comments

Schimel said it was unclear how the panel would rule, noting, "You can't always tell what a judge's ultimate decision will be based on the questions."

Planned Parenthood of Wisconsin attorney Lester Pines also said the final outcome is not necessarily evident in oral arguments, but he noted, "It appeared Judge Hamilton and Judge Posner had very serious problems with this law" (Milwaukee Journal Sentinel, 10/1).