November 24, 2015 — A three-judge panel for the 7th U.S. Circuit Court of Appeals on Monday upheld a lower court ruling that struck down part of a Wisconsin law (Act 37) that would require physicians who perform abortions to have admitting privileges at a nearby hospital, the Wisconsin State Journal reports (Treleven, Wisconsin State Journal, 11/24).
The law's ultrasound requirement was not included in the lawsuit, and it remains in effect (Marley, Milwaukee Journal Sentinel, 11/23).
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, stated that the admitting privileges requirement would restrict access to abortion in Wisconsin. They noted that 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.
In March, Judge William Conley ordered a permanent injunction against the law, ruling that it violated the 14th Amendment. Wisconsin Attorney General Brad Schimel (R) appealed Conley's ruling in April (Women's Health Policy Report, 10/5).
The Guttmacher Institute reports that 11 states have enacted admitting privileges requirements, of which six have been blocked by the courts (Richmond, AP/San Francisco Chronicle, 11/23). Earlier this month, the Supreme Court announced that it will hear a challenge to parts of an omnibus antiabortion-rights law (HB 2) in Texas, including the law's admitting privileges requirement (Women's Health Policy Report, 11/13).
Details of Ruling
The 7th Circuit ruled in a 2-1 decision that the law is unconstitutional. In the majority decision, Judge Richard Posner noted that data proving the law's medical benefits was "non-existent," adding, "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" (Wisconsin State Journal, 11/24).
He added that the law could harm women by delaying their access to abortion care, noting, "What makes no sense is to abridge the constitutional right to abortion on the basis of spurious contentions regarding women's health -- and the abridgment challenged in this case would actually endanger women's health."
Posner pointed out that hospitals will treat women experiencing complications from an abortion procedure even if her provider does not have admitting privileges (AP/San Francisco Chronicle, 11/23). He also noted that clinics already must have transfer agreements with hospitals, noting, "The requirement of admitting privileges cannot be taken seriously as a measure to improve women's health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency" (Milwaukee Journal Sentinel, 11/23).
Posner also said the law targeted abortion providers, noting that it did not impose similar requirements on providers of riskier medical procedures (Wisconsin State Journal, 11/24). He noted that the law required abortion providers to obtain admitting privileges within two days of the law's enactment, even though obtaining such privileges usually takes several months. "The legislature's intention to impose the two-day deadline ... is difficult to explain save as a method of preventing abortions that women have a constitutional right to obtain," he wrote.
According to the AP/Chronicle, Judge David Manion in a dissenting opinion supported the law's constitutionality (AP/San Francisco Chronicle, 11/23).
Planned Parenthood of Wisconsin CEO Teri Huyck praised the ruling. "At Planned Parenthood, our top priority is patient safety," she said, adding, "As the court affirmed, this law does nothing to enhance the health and safety of patients. The intention of this law was to put obstacles in the path of women seeking safe, legal abortion care in Wisconsin."
Anne Schwartz, a spokesperson for Wisconsin Attorney General Brad Schimel (R), said the Supreme Court decision on Texas' HB 2 will decide the status of the Wisconsin law. Schwartz said Schimel intends to petition the Supreme Court for review of the 7th Circuit ruling (Wisconsin State Journal, 11/24).