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From Health Law Daily, June 23, 2014

No review of injunction against law requiring admitting privileges for performance of abortions

By Michelle L. Oxman, JD, LLM

On June 23, 2014, the Supreme Court denied the petition of Wisconsin officials for review of the Seventh Circuit Court of Appeals decision affirming the preliminary injunction against implementation of the state’s law requiring physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the site of the abortion. The denial of certiorari in Van Hollen v Planned Parenthood of Wisconsin is not a ruling on the merits of the case and is not precedential.

The statute. As we have reported, on Friday, July 5, 2013, the Wisconsin legislature enacted Wis. Stat. sec. 253.095. The statute became effective Monday, July 8, 2013, so that on the next business day after enactment, any physician who performed abortions in Wisconsin without having admitting privileges was breaking the law. Planned Parenthood of Wisconsin and Affiliated Medical Services, both of which operate clinics where abortions are performed, immediately sued in federal court to enjoin enforcement of the law. The district court first entered a temporary restraining order preserving the status quo.

The trial court. Within a few weeks, the court held a hearing and entered a preliminary injunction pending a trial on the merits of the case. The clinics presented testimony that two clinics would be forced to close and a third would need to limit its abortions to half of the number it usually performed. Hospitals may choose whether to grant privileges regardless of the physician’s qualifications. The court found that the law placed undue burdens on women seeking abortions, especially for women in remote parts of the state, who would travel another hundred miles if the Appleton clinic closed. In addition, the absence of any similar requirement for physicians who perform more dangerous procedures in outpatient clinics suggested that the real purpose of the law was to restrict access to safe, legal abortion.

The appeal. State officials appealed to the Seventh Circuit, which upheld the injunction in December 2013. The appeals court noted that state argued that the purpose of the law was to protect the health of pregnant women, but the legislature did not consider any evidence of the medical necessity of the requirement; in fact, most of the discussion concerned a requirement that the patient undergo an ultrasound before the abortion. The court also observed that the penalty for violating the law, i.e., an award of civil damages to the father or grandparent of the “aborted unborn child,” did not depend on any injury to the woman. It also considered the absence of similar regulations of physicians performing other surgical procedures with higher rates of complication and more serious risks.

Both the district court and the appeals court rejected the state’s argument that the providers of abortion services lacked standing to challenge the law. The appeals court noted that the interests of the patients and the providers were the same, and that the physicians are subject to penalties for violating the statute.

The issue is likely to come before the Supreme Court in the future, as two other circuits have decided similar cases in favor of the state.

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