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Saturday, May 18, 2024 | Back issues
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7th Circuit Tosses Wisconsin Abortion Law

CHICAGO (CN) - A law requiring abortion providers to have admitting privileges at a nearby hospital confers little medical benefit and a heavy burden on patients, a divided Seventh Circuit ruled.

In a strongly worded opinion, U.S. Circuit Judge Richard Posner, writing for the majority on the three-judge panel, slammed the state legislature for rushing the law through in 2013 under the guise of protecting women's health.

"Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure - abortion - that rarely produces a medical emergency," Posner wrote.

Access to abortions is already tough in Wisconsin where only doctors are allowed to perform the procedure, and all providers are required to have transfer agreements with local hospitals.

When the state passed the admitting privileges law in July 2013, none of the state's seven abortion providers had admitting privileges - and the law, passed on a Friday, gave them only the next two days, a Saturday and Sunday, to complete the several-month process to obtain them, Posner said.

Planned Parenthood of Wisconsin, plus several doctors and another abortion clinic, sued the day Governor Scott Walker signed the bill into law.

A federal district court temporarily, then permanently enjoined the law from taking effect, both decisions that have since been upheld by the Seventh Circuit.

"The feebler the medical grounds (in this case, they are nonexistent), the likelier is the burden on the right to abortion to be disproportionate to the benefits and therefore excessive," Posner wrote.

His opinion focuses extensively on the lack of medical evidence supporting the need for such a law, noting that all major medical organizations and doctors testified that admitting privileges are unnecessary when transfer agreements and emergency rooms are available.

"The defendants argue that obtaining admitting privileges operates as a kind of Good Housekeeping Seal of Approval for a doctor," Posner wrote. "True, but obtaining the seal does not require that the hospital in which the doctor obtains the privileges be within 30 miles of his clinic."

Posner pointed out that outpatient surgeries with far higher risks of serious complications do not require providers to have admitting privileges.

"And we can't forbear to mention the weird private civil remedy for violations: The father, or a grandparent, of the 'aborted unborn child' is entitled to obtain damages, including for emotional and psychological distress, if the abortion was performed by a doctor who lacked admitting privileges," Posner added, pointing out that if the statute was truly to protect maternal health it would address damages only if the mother underwent injury.

Posner was joined in the majority by U.S. Circuit Judge David Hamilton.

U.S. Circuit Judge Anthony Manion dissented, finding that the court improperly shifted to the state the burden of proving the law rational.

"That's exactly backwards," Manion wrote. "Under rational basis review, courts must presume that the law in question is valid and uphold it so long as the law is rationally related to a legitimate state interest."

Manion said that until recently, medical and abortion organizations recommended that doctors have admitting privileges at a nearby hospital.

"It appears from the trial testimony that plaintiff doctors have simply decided that admitting privileges are only desirable insofar as they do not cause members of their guild to become ineligible to perform abortions," Manion wrote.

He also said he believes the "undue burden" standard cited by the majority and several courts on the issue of abortion has no basis in case law.

Further, he writes, the fact that the law would force clinics to close and women to travel to another state for an abortion is not the state's problem, as the majority suggests.

"The implications of this argument are astounding," Manion wrote. "Taken to its logical end, this argument would require the state to assume some affirmative duty both to provide abortion services and to do so in a manner that is convenient for consumers of abortion and with no regard for the quality of healthcare professionals that a state's naturally occurring marketplace provides."

In sum, Manion said, the solution to this issue is not to invalidate a law, but to hire doctors who can meet the law's requirements.

In a statement, Planned Parenthood Advocates of Wisconsin praised Posner's ruling.

"At Planned Parenthood, our top priority is patient safety. As the court affirmed, this law does nothing to enhance the health and safety of patients," said Teri Huyck, the CEO of Planned Parenthood of Wisconsin. "The intention of this law was to put obstacles in the path of women seeking safe, legal abortion care in Wisconsin."

Anne Schwartz, a spokeswoman with Wisconsin Department of Justice, noted that the U.S. Supreme Court recently took up a similar case involving restrictions on abortion providers in Texas. "We intend to seek certiorari review on the Wisconsin case," Schwartz said.

The plaintiffs were represented by Laurence DuPuis of the ACLU and Lester Pines of Cullen Weston Pines & Bach LLP.

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