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From Health Law Daily, December 27, 2013

Preliminary injunction halting enforcement of law requiring physicians to have admitting privileges to perform abortions affirmed

By Susan L. Smith, JD, MA

A preliminary injunction that enjoins Wisconsin from enforcing a statute that prohibits physicians who do not have admitting privileges in a hospital within 30 miles of an abortion location from performing abortions was upheld. Planned Parenthood of Wisconsin, Inc. (PPW) and Affiliated Medical Services (AMS) (collectively, health care clinics) argued that the law discourages abortions without medical justification and imposes an undue burden on women. The 7th circuit affirmed the district court’s decision to grant the injunction concluding that “the state neither presented evidence of a health benefit nor rebutted the [health care clinics] evidence that the statute if upheld will harm abortion providers, their clients, and potential clients” (Planned Parenthood of Wisconsin, Inc. v Van Hollen, December 20, 2013, Posner, R).

The law. On Friday, July 5, 2013, the Governor of Wisconsin signed into law a statute requiring any physician performing an abortion to have admitting privileges in a hospital within 30 miles of the abortion location was enjoined from enforcement (Wisc. Stat. sec. 253.095(2)) (seePlanned Parenthood of Wisconsin v Hollen, August 2, 2013, Conley, W). Under the statute, a physician who does not have such admitting privileges would be subject to heavy penalties if he or she defies the prohibition. The statue required compliance by July 8, the Monday after enactment.

The plaintiffs’ challenge. PPW and AMS are the only entities that operate abortion clinics in Wisconsin. PPW has three health centers that provide abortion services and AMS has one clinic location. Seven clinic doctors who perform abortions did not have visiting privileges at a hospital within the 30 mile radius of their clinic. The health clinics filed suit challenging the constitutionality of the statute under 42 U.S.C. sec. 1983, which provides a remedy for violations of federal law by state employees and, at the same time, filed a motion for a temporary restraining order. The district court issued a preliminary injunction pending a trial on the merits finding that the admitting privileges requirement creates a substantial obstacle to a woman seeking an abortion in Wisconsin and irreparable harm to those women who will be prevented from having an abortion in the near term either because of the undue burden of additional travel or the late stage of pregnancy. State officials appealed the injunction.

Court’s analysis. One compelling reason for preliminary injunction identified by the court was the impossibility of complying with the deadline imposed by the statute. Five months after the law would have taken effect the application for admitting privileges of one of the doctors was denied and none of the others had been granted privileges. In addition, two clinics would have had to shut down because of noncompliance and another clinic would have lost the services of half of its doctors. The court stated that there was no way the deadline could have been met, noting that it takes two or three months or longer to obtain admitting privileges. In addition, few doctors in Wisconsin perform abortions and those that do may work at more than one clinic, which would require them to obtain admitting privileges at multiple hospitals.

“Moreover, hospitals are permitted rather than required to grant such privileges,” the court added. Physicians who perform abortions might find hospitals, such as Catholic hospitals resistant to granting privileges, the court added. The court also found that no other procedure performed outside a hospital, even one as invasive as a surgical abortion, including gynecological procedures that are medically similar to abortions even when the rate of complications is higher than for abortions, is required to be performed by doctors who have admitting privileges at hospitals within a specified radius of a clinic at which the procedure is performed under Wisconsin law.

The court pointed out the trend in the hospital industry in which a hospital has a treating physician hand over the care of a patient who requires hospitalization to a physician employed by the hospital. The court noted that there is no evidence that complications from an abortion require greater physician continuity than other outpatient procedures.

Conclusions. Although the state officials challenged the standing of the plaintiffs, PPW and AMS had standing to challenge the law because the doctors are subject to penalties for violation of the law, the court said. According to the court: (1) nothing in the law requires a doctor who has admitting privileges to care for a patient who has complications form an abortion, (2) the statute does not distinguish between a surgical and medical abortion (abortion by pills), and (3) the state officials did not provide evidence of justification of the law on medical grounds. The court concluded that without the injunction, health care clinics “face greater harm irreparable by entry of a final judgment in their favor than the state faces if the implementation of the statute is delayed” because of the disruption of services the health care clinics provide, closure of clinics if the physicians are unable to obtain admitting privileges timely, and delays in services because of the shortage of eligible doctors.

The case number is No. 13-2726.

Attorneys: Susan M. Crawford (Cullen Weston Pines & Bach LLP) for Planned Parenthood of Wisconsin, Inc., Susan Pfleger, and Fredrik F. Broekhuizen. Talcott Camp, with the American Civil Liberties Union for Milwaukee Women's Medical Services, doing business as Affiliated Medical Services. Clayton P. Kawski, with the Wisconsin Department of Justice Attorney General’s Office for J. B. Van Hollen the Attorney General of the state of Wisconsin, Ismael Ozanne, District Attorney for Dane County, in his official capacity and as representative of a class of all District Attorneys in the State of Wisconsin, James Barr, Medical Examining Board Member, Mary Jo Capodice, Medical Examining Board Member, and Greg Collins, Medical Examining Board Member.

Companies: Planned Parenthood of Wisconsin, Inc.; Milwaukee Women's Medical Services, doing business as Affiliated Medical Services.

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