Doctor Challenges Wisconsin Abortion Law

MADISON, Wisc. (CN) - Planned Parenthood and a doctor claim in court that Wisconsin's abortion law unconstitutionally subjects doctors to criminal penalties, including prison.

Planned Parenthood of Wisconsin and a Milwaukee physician claim Wisconsin Act 217 is unconstitutionally vague and threatens Planned Parenthood clinics, its physicians and patients. The law covers medically induced, as opposed to surgical, abortions.

Planned Parenthood sued Attorney General J.B. Van Hollen, the Dane County district attorney, as representative of all Wisconsin district attorneys, and the 12 members of the Medical Examining Board, in their official capacities.

Act 217 took effect in April. The plaintiffs claim the law is unconstitutionally vague for several reasons. It requires that a physician be present when a patient is given abortion-inducing drugs, and that the same physician accurately determine that the patient's consent to an abortion is voluntary.

It bans all medically induced abortions unless the physician who prescribes the procedure performs a physical exam on the patient before information on the procedure is provided, and requires that the same physician be present when the drugs are administered.

"Wis. Stat. § 253.105(2) does not account for the fact that the medication abortion procedure requires the woman to take two different drugs with at least a twenty-four hour interval between them," the complaint states.

"The requirement in Wis. Stat. § 253.105(2) that the physician who prescribes or provides a drug to induce abortion be 'physically present in the room when the drug is given to the woman' is ambiguous and unclear in light of the two-drug regimen entailed by a medication abortion."

During a medically induced abortion at a Planned Parenthood clinic, two drugs are administered to the patient at different times: Mifeprex and misoprostol.

"Under PPW's established, evidence-based procedure for medication abortions, the physician is physically present in the room when the two medications are given to the patient, i.e., when the drugs are dispensed to the patient, but is not physically present when the patient takes the misoprostol 24 hours later," the complaint states.

The word "given" is particularly vague, as it can determine the criminality of a physician.

"If 'given' means 'administered,' then a physician who provides the medications to the patient under the PPW evidence-based medical protocol is in violation of Wis. Stat. § 253.105(2) when the patient takes the misoprostol at home, outside of the physician's presence, 24 hours after taking the Mifeprex," according to the complaint.

Plaintiffs say that pre-Act 217 laws provided procedures and protocols to ensure that a physician is present for dispensing of medication and that patients be aware of all options before consenting to the procedure.

"Before the enactment of Act 217, the statutes did not impose any special or unique requirements solely applicable to medication abortions. The requirements for providing a patient with medication to induce abortion were identical to the provisions for providing a patient with a surgical abortion," the complaint states.

"The statutes required that at least 24 hours before the abortion is performed or induced, 'the physician who is to perform or induce the abortion or any other qualified physician' must orally inform the woman of specified information, including information about the abortion procedure, the gestational age, medical risks associated with the pregnancy and the abortion procedure, and other information."

But proving that a woman's choice is "voluntary" is subjective, according to the complaint.

"There is no scienter element for a physician to be found in violation of Wis. Stat. § 253.10(3), including the requirement that the physician determine that the patient's consent is 'in fact, voluntary.' Nor does the statute establish an objective standard for determining if a physician has violated the statute," the complaint states.

It continues: "The statutory requirement that a physician determine that a patient's consent is 'in fact, voluntary,' imposes a purely subjective and unattainable standard that flies in the face of the longstanding objective standard for informed consent, applied in virtually all other areas of medical practice, that allows physicians to perform their all-important work without fearing unfair and unpredictable civil liability, civil penalties, and professional discipline."

Penalties and professional discipline include a fine of $1,000 to $10,000, imprisonment, and revocation of a physician's medical license.

"In addition, a person who violates Wis. Stat. § 253.10(3) is civilly liable to the woman on whom the abortion was performed for damages arising out of the performance or inducement of the abortion, including damages for personal injury and including damages for personal injury and emotional and psychological distress; not less than $1,000 nor more than $10, 000," according to the complaint.

Planned Parenthood said it stopped medically induced abortions at all three of its Wisconsin clinics, for fear of legal and professional sanctions and penalties.

"The provisions impose new requirements on medical providers in the administering medications to terminate pregnancy and impose new regulations on the physician-patient relationship in the context of providing services to women seeking to terminate pregnancies," the complaint states.

Planned Parenthood seeks declaratory judgment that law is unconstitutional, and wants the defendants enjoined from enforcing it.

The plaintiffs are represented by Cullen Weston Pines & Bach, of Madison.

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