Wis. Appeals Ruling on Antiabortion Law; AG Says Religious Hospitals Must Grant Abortion Providers Admitting Privileges

August 7, 2013 — Wisconsin Attorney General J.B. Van Hollen (R) on Tuesday appealed a federal court ruling that blocked until November a state law (SB 206) requiring abortion providers to have admitting privileges at a hospital within 30 miles, the Milwaukee Journal Sentinel reports (Marley, Milwaukee Journal Sentinel, 8/6).

U.S. District Judge William Conley first issued a temporary injunction against the law on July 8, after Planned Parenthood Federation of America and the American Civil Liberties Union filed a lawsuit seeking to block the measure from taking effect in early July as scheduled. That injunction was intended to stay the law until a July 17 hearing, and Conley on July 18 again extended the injunction by two weeks. On Aug. 2, Conley issued a preliminary injunction against the law until Nov. 25, when a trial on its constitutionality will begin.

The law also requires a woman seeking an abortion to undergo an ultrasound at least 24 hours before the procedure. In addition, it mandates that the doctor or individual performing the ultrasound try to detect the fetal heartbeat, as well as describe the size, location and number of fetuses, and any body parts or organs that are visible. The woman would not be required to look at the ultrasound images or heartbeat monitor, and the requirements would not apply in cases of rape, incest or emergencies (Women's Health Policy Report, 8/5).

Tuesday's Filing

Van Hollen's appeal, filed with the 7th U.S. Circuit Court of Appeals, did not include any arguments in support of his request.

According to the Journal Sentinel, the appeals court will only consider the issue of whether the state should be permitted to enforce the law until the Nov. 25 trial, when Conley will decide whether the law should be upheld or struck down. Most likely, the losing side would then bring the entire case before the appeals court, the Journal Sentinel reports (Milwaukee Journal Sentinel, 8/6).

In the meantime, Lester Pines -- an attorney for Planned Parenthood -- said he is confident Conley's preliminary injunction will stand (Minneapolis Star Tribune, 8/6).

Hospitals Cannot Use Religious Affiliation To Deny Admitting Privileges, State Argues

Van Hollen in a court filing last week argued that three Wisconsin-based Catholic hospital systems would "be in active violation of federal law" if they deny abortion providers admitting privileges on religious grounds, the Journal Sentinel reports.

He explained that discriminating against abortion providers in that capacity would violate the federal Church Amendments. According to the filing, those laws -- passed after the Supreme Court's ruling in Roe v. Wade -- ensure that "hospitals accepting federal funds may not discriminate against a physician because that physician has participated in or refused to participate in abortions."

In media reports, representatives of the three hospital systems -- Wheaton Franciscan Healthcare, Columbia St. Mary's Health System and Hospital Sisters Health System -- have said their facilities would not grant admitting privileges to abortion providers because of their Catholic affiliations. Some abortion providers in the state have said they are applying for admitting privileges at religiously affiliated hospitals.

Gretchen Borchelt -- senior counsel and director of state reproductive health policy at the National Women's Law Center -- said that while the Church Amendments have not been widely tested in court, she knows of no case law to support allowing a hospital to deny privileges to an abortion provider when neither the hospital nor its staff would have to participate in the procedure.

Borchelt added that hospitals in other states with similar laws typically cite abortion providers' failure to meet other standards, such as admitting a certain number of patients per year, as their rationale for denying privileges (Ahmed, Milwaukee Journal Sentinel, 8/7).