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From Health Law Daily, November 24, 2015

Court terminates enforcement of Wisconsin law requiring admitting privileges for abortion doctors

By Bryant Storm, J.D.

The Seventh Circuit affirmed the grant of a permanent injunction barring enforcement of a Wisconsin law that requires a physician performing an abortion to have admitting privileges at a hospital no more than 30 miles from the clinic where the abortion is performed. The court reasoned that a statute restricting access to abortion “with no offsetting medical benefit” cannot be upheld (Planned Parenthood of Wisconsin, Inc. v. Schimel, November 23, 2015, Posner, R.).

Lawsuit. Planned Parenthood of Wisconsin, Inc. and Milwaukee Women’s Medical Services (also known as Affiliated Medical Services or AMS) operate the only four abortion clinics in Wisconsin. On the day the governor signed the statute into law, Planned Parenthood, AMS, and two physicians employed by Planned Parenthood filed suit challenging the constitutionality of the law under 42 U.S.C. § 1983.

Background. The plaintiffs obtained a temporary restraining order and then a preliminary injunction against the provision of the statute requiring abortion physicians to have hospital admitting privileges (see Preliminary injunction granted prohibiting Wisconsin from enforcing hospital admitting privileges requirement for abortion providers, August 5, 2013). The Seventh Circuit upheld the preliminary injunction and ordered a trial on the merits (see Preliminary injunction halting enforcement of law requiring physicians to have admitting privileges to perform abortions affirmed, December 27, 2013). Following a full trial, the district court found that the Wisconsin law would impose a significant burden on women’s access to abortions and only result in a marginal benefit to women’s health. Accordingly, the district court permanently enjoined enforcement of the admitting privileges requirement (see Admitting privileges law invalidated with permanent injunction, March 23, 2015). The state appealed.

Arguments. On appeal before the Seventh Circuit, the state of Wisconsin asserted that the statute was necessary to “protect the health of women who experience complications from an abortion.” The providers disagreed, arguing that that if the statute were allowed to go into effect, it “would not protect the health of women but would simply make it more difficult for them to obtain abortions.” Therefore, the providers asserted that the statute violates constitutional rights recognized by the U.S. Supreme Court.

Obtaining privileges. The court held that the time between the date the statute was signed into law—July 5, 2013—and its compliance date—July 7, 2013—was too brief to allow abortion doctors to obtain admitting privileges. As of July 7, 2013, none of AMS or Appleton Planned Parenthood physicians had admitting privileges. In addition to the fact that legislators only gave physicians two weekend days to obtain compliance with the statue, the law failed to account for the fact that it often takes months to obtain admitting privileges at a hospital. For example, it took one of the named plaintiffs ten months to obtain admitting privileges and it took the other eight months.

Additionally, because admitting privileges are decided by hospitals on a permissive rather than obligatory basis, there was no guarantee that any of the physicians at any of the four clinics would have been able to obtain admitting privileges at all. The Seventh Circuit noted that if enforcement of the statute had not been stayed, two of the state’s four clinics would have been forced to close “because none of their doctors had admitting privileges at a hospital within the prescribed radius.” The court also noted that for the doctors at the AMS clinic, the chances of obtaining any admitting privileges was “slim to none” because of the strict hospital staff application requirements that are unfavorable to the physicians of the AMS clinic who only perform abortions and lack hospital experience.

Deadline. The court rejected the state’s arguments that abortion doctors had two years since the statute was signed into law to obtain admitting privileges and that there was no evidence the legislature knew physicians would be unable to comply with the statute. The court held that the physicians could not have been expected to comply with something that was not yet officially enacted. Additionally, the court refused to believe that the state legislature could not have known that an abortion doctor could actually obtain admitting privileges over the course of two weekend days. The court held that the fixing of such a deadline was only permissible “if there were reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges.” The Seventh Circuit agreed with the district court and noted: “there is no reason to believe that.”

Treatment. The court explained that because a woman experiencing complications from an abortion can go to her nearest hospital, regardless of her abortion doctor’s admitting privileges, the statute has no impact on a potential patient’s course of treatment. The court held that from a treatment perspective, a transfer agreement between the abortion clinic and the hospital is the most salient protection. Because Wisconsin already requires such transfer agreements and because “complications from an abortion are both rare and rarely dangerous,” the court reasoned that there was only an attenuated need for physicians to have admitting privileges. Additionally, the court held that there was no evidence in the record than any woman whose abortion resulted in a medical complication ever was “made worse off by being handed over by her abortion doctor” to some other physician due to a lack of admitting privileges. The court also noted that, in Wisconsin, no other medical procedure performed outside of a hospital—including those more dangerous than abortions—requires the performing physician to have admitting privileges.

Impact. The court questioned the motivation behind the statute, noting that protection of the mother was only partially at issue because the statue provided what the court called a “weird private civil remedy for violations” where the fetus’s father or grandparent is entitled to damages if the statue is violated, regardless of whether there is “proof any injury of any kind to the mother.” Additionally, the court noted that the statute would have an adverse impact on women’s health by likely closing at least the AMS clinic (notably the only clinic in Wisconsin that performs late-term abortions), due to a lack of eligible physicians. The statute would also limit the capacity of the other clinics to perform abortions, making abortions inaccessible for some woman and delayed for others. The court summarily rejected the state’s argument that the reduced access to late-term abortions was not problematic because Chicago abortion clinics (about 90 miles away) provided such services. The Seventh Circuit explained that the constitutionality of the Wisconsin Law could not turn on the availability of services in another jurisdiction.

Dissent. Judge Manion dissented on the grounds that the district court erred when it shifted “the burden onto the state to adduce empirical evidence justifying the rationality of its regulation.” The dissent asserted that Wisconsin is permitted to constitutionally regulate abortion so long as it has a rational basis to act and does not impose an undue burden—a standard, which the dissent found to be met. Judge Manion reasoned that the court set the “burden of proof exactly backwards.” The dissent asserted that the admitting privilege requirement protected the health and safety of pregnant women and did not constitute an undue burden on the access of the constitutional right to abortion. The dissent reasoned that the right to procure an abortion does not have an intrastate component and does not guarantee the right to obtain an abortion at the clinic of one’s choice. Accordingly, the dissent found no undue burden in the fact that the Wisconsin law would close one of the state’s four clinics and limit the capacity of the other three.

The case is No. 15-1736.

Attorneys: Laurence Jacques Dupuis, American Civil Liberty Union of Wisconsin, for Planned Parenthood of Wisconsin, Inc. and Milwaukee Women's Medical Services d/b/a Affiliated Medical Services. Brian Patrick Keenan, Office of the Attorney General, for Brad D. Schimel, Attorney General of Wisconsin.

Companies: Planned Parenthood of Wisconsin, Inc.; Milwaukee Women's Medical Services d/b/a Affiliated Medical Services; Office of the Wisconsin Attorney General

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