MADISON, Wisc. (CN) – A federal judge on Wednesday restrained Wisconsin for 10 days from enforcing its new law that requires doctors who perform abortions to have hospital admitting privileges within 30 miles of their clinics.
“(T)here is a troubling lack of justification for the hospital admitting privileges requirement,” U.S. District Judge William Conley wrote in his 19-page opinion and order decision.
Planned Parenthood of Wisconsin sued Wisconsin on July 5, challenging the constitutionality of Section 1 of 2013 Wisconsin Act 37 (Senate Bill 206), to be codified at Wis. Stat. § 253.095.
Planned Parenthood said in its complaint: “The Act will unconstitutionally restrict the availability of abortion services in Wisconsin by imposing a medically unnecessary requirement that all physicians who perform abortions have ‘admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed.’ Wis. Stat. § 253.095(2). If allowed to take effect, the Act would require plaintiff Affiliated Medical Services to shut down entirely, and would strip plaintiff Planned Parenthood of Wisconsin of the ability to provide abortions in Appleton (resulting in the closure of that health center) and severely curtail its ability to provide abortions in Milwaukee. This will make abortion unavailable in Wisconsin after 19 weeks of pregnancy, leave all areas north of Madison without an abortion provider, and severely restrict the availability of abortions in the remainder of the State.”
Several states have enacted laws with the “admitting privileges” rule as a back-door way to restrict or prohibit abortion.
Wisconsin’s regulation, scheduled to take effect Monday, July 8, will not be enforced until July 18. A hearing on the injunction hearing is scheduled for July 17.
Judge Conley found: “There will almost certainly be irreparable harm to those women who will be foreclosed from having an abortion in the next week either because of the undue burden of travel or the late stage of pregnancy, as well as facing increasing health risks caused by delay.”
Conley ruled that the U.S. Supreme Court “may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health” and that “no medical purpose is served” by requiring the doctors to have hospital admitting privileges.
Planned Parenthood claimed Act 37 would unconstitutionally restrict the availability of abortions in the state, violate constitutional due process and unconstitutionally treat doctors who perform abortions differently from those who perform other procedures.
“The Act was rushed through the Wisconsin Legislature, passing less than 10 days after its introduction on June 4, 2013,” Planned Parenthood said in its complaint. “The Act, moreover, takes immediate effect on July 8, 2013, even though there is no way for plaintiffs to obtain the necessary privileges (or even attempt to obtain them) so quickly, in violation of their due process rights under the Fourteenth Amendment. Moreover, by making their ability to provide abortions contingent on their physicians’ obtaining admitting privileges at local hospitals, the Act unconstitutionally delegates standardless and unreviewable authority to private parties – the hospitals – also in violation of plaintiffs’ due process rights.”
Hospitals often grant privileges only to physicians who guarantee a minimum number of annual referrals, a requirement the abortion providers cannot meet because abortion problems that require hospitalization are rare, according to the complaint.
Some hospitals will not grant admitting privileges to abortion providers out of political, ideological or religious reasons, the complaint states.
Act 37 will make abortion unavailable in Wisconsin after 19 weeks of pregnancy, leave all areas north of Madison without an abortion provider, and severely restrict availability of abortions in the rest of the state, the complaint states. It imposes civil forfeitures as well as potential civil liability on any person who violates it.
ACLU of Wisconsin legal director Larry Dupuis said in a statement Monday: “We’re thankful that the judge has put the brakes on a dangerous law that was rammed through the Legislature with no thought to the health and well-being of Wisconsin women and families.”
Judge Conley found that the state is unlikely to meet its burden of proof that requiring admission privileges will improve care for patients who experience problems after an abortion.
He found that evidence indicates “the current system already handles efficiently the very low percentage of women seeking abortions with serious complications.”
Even if the state can meet that burden, Conley said, the plaintiffs are likely to succeed in proving that the law erects impermissible obstacles to women seeking abortion.
Those obstacles include: elimination of abortion services after 19 weeks (pre-viability); closure of half of the clinics in the state; geographical limitation of abortion clinics in the state; and significant reduction in access to abortions even at those clinics that remain open.
Planned Parenthood is represented by Lester Pines with Cullen Weston Pines & Bach, and by staff attorneys with Planned Parenthood and the American Civil Liberties Union Foundation.
Act 37 also requires abortion providers to give women a description of ultrasound images of the fetus, including its dimensions, and to describe any external features and internal organs that are visible on the image.
The ultrasound provision is not being challenged.
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