Federal Appeals Court Stays Wis. Admitting Privileges Law, Pending Trial

January 2, 2014 — The 7th U.S. Circuit Court of Appeals on Dec. 20 upheld a lower court's preliminary injunction against a Wisconsin law (SB 206) that requires abortion providers to have admitting privileges at a hospital within 30 miles, the AP/Minnesota Star Tribune reports. The law, which was originally scheduled to take effect July 8, 2013, will be stayed pending a trial on the merits of the legislation (Richmond, AP/Minnesota Star Tribune, 12/20/13).

The law has been on hold since last July, when U.S. District Judge William Conley issued a temporary injunction against it after Planned Parenthood Federation of America and the American Civil Liberties Union challenged it in court. After extending the injunction for several weeks, Conley in August issued a preliminary injunction against the law until a hearing could be held on its constitutionality in November, but Wisconsin Attorney General J.B. Van Hollen (R) appealed his ruling (Women's Health Policy Report, 8/7/13). In December, the federal appeals court heard oral arguments in the case (Women's Health Policy Report, 12/5/13).

Latest Ruling Notes Potential Harm to Clinics, Equal Protection Concerns

The 7th Circuit judges said the injunction "must be upheld," writing, "It is beyond dispute that the plaintiffs face greater" irreparable harm if the law is allowed to take effect than the state would if it is delayed (Cronin Fisk, Bloomberg BusinessWeek, 12/20/13).

Judge Richard Posner, in an opinion for the three-judge panel, said, "Had enforcement of the statute not been stayed, two of the state's four abortion clinics -- one in Appleton and one in Milwaukee -- would have had to shut down because none of their doctors had admitting privileges at a hospital within the prescribed 30-mile radius of the clinics, and a third clinic would have lost the services of half its doctors."

Posner added, "The impossibility of compliance with the statute even by doctors fully qualified for admitted privileges is a compelling reason for the preliminary injunction." In addition, he wrote that there is "no documentation of medical need" supporting the state's argument that women would receive better continuity of care if their abortion provider had admitting privileges.

Posner also raised questions about equal protection, given that the law would require the state to treat surgical abortion differently than other surgical procedures. "No other procedure performed outside a hospital, even one as invasive as a surgical abortion ... is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within specified, or indeed any, radius of the clinic at which the procedure is performed," he wrote (Bouboushian, Courthouse News, 12/24/13).