Federal Trial Begins Over Wisconsin Limits on Abortion Access

(AP Photo/Rick Bowmer)

MADISON, Wis. (CN) — A bench trial for Planned Parenthood’s challenge to Wisconsin abortion laws kicked off Monday in federal court, where opening statements and witness testimony centered on restrictions on medication and suction abortions.   

The underlying lawsuit filed in January 2019 by Planned Parenthood of Wisconsin, or PPWI, in conjunction with its medical director and three nurses, contests state laws which only allow doctors to perform the two types of abortions and require women seeking abortion-inducing drugs to see the same doctor on two separate visits.

Defined in the complaint as the physician-only law, same-physician law and physical-presence law, these statutory restrictions also mandate the doctor who saw a patient during the first visit to be physically present in the room when a woman is given an abortion pill during the second visit.

Four outpatient clinics across three Wisconsin cities offer abortion services, and the only one outside of Milwaukee or Madison in Sheboygan only offers them a few days per month. None of the clinics offer services on nights or weekends, and none of PPWI’s three clinics that provide abortion services staff a full-time physician.

Advanced practice clinicians—health care professionals such as advanced nurse practitioners and certified nurse-midwives with advanced education, training, experience and licensing—are arbitrarily barred from providing these abortion services, the lawsuit claims, even though they can deliver babies, perform uterine tissue biopsies, manage miscarriages and independently prescribe medications.

PPWI claims the access restrictions to medication abortions and more invasive aspiration, or suction, abortions impose undue travel and scheduling burdens and delay access to care for patients, in violation of their 14th Amendment liberty and privacy rights as well as their equal protection rights.

Defendants in PPWI’s lawsuit are Wisconsin Attorney General Josh Kaul, Dane County District Attorney Ismael Ozanne, Wisconsin Secretary of the Department of Safety and Professional Services Dawn Crim, and members of the state boards of nursing and medical examining.

The GOP-controlled Wisconsin Legislature tried to intervene in the lawsuit under lame-duck laws they passed limiting Kaul’s executive powers on the basis that the Democratic attorney general could not be trusted to defend state abortion laws in court.

U.S. District Court Judge William Conley, a Barack Obama appointee, denied the Legislature’s intervention attempt and the Chicago-based Seventh Circuit affirmed his decision in November 2019, finding Republican lawmakers could not prove Kaul would inadequately represent the state’s interests and defend the abortion laws.

During opening statements on Monday, Lori Day from New York-based firm Jenner & Block reiterated on behalf of the plaintiffs that the “burdens imposed by the access restrictions outweigh their medical benefits,” which PPWI and the nurses argue are basically nonexistent.

Day said the Wisconsin laws do not advance any legitimate government interest and “defendants have proffered no medical evidence to support their claims.” The attorney qualified that “abortion is safe and effective and complications are rare” and, in the case of medication abortions, the pills work the same if a doctor or nurse administers them.

For added context, Day presented statistics showing that 75% of women receiving abortions are poor or low-income and that the delays the challenged laws cause related to arranging travel, child care and getting off work from low-paying jobs with no paid time off for these women can actually result in the compounded physical health risks associated with getting late-term abortions.

Assistant Attorney General Brian Keenan argued on behalf of the state that the laws in question are hardly new, with the latest being installed in 2012, and “at least statewide, women have been obtaining abortions in Wisconsin with these laws…so it’s not causing any statewide shortage for sure.”

Keenan put forth that the plaintiffs will not be able to show that the laws have actually stopped women from obtaining abortions based on selective readings of imperfect studies, that the Wisconsin laws are sound under U.S. Supreme Court precedent, and that while there is a constitutional right to abortions generally, there is no constitutional right to any specific kind of abortion.

Dr. Kathy King, PPWI’s medical director and an associate professor at the Medical College of Wisconsin, was the first expert called for testimony in the trial. King was also attached to the original complaint as a plaintiff.

In response to questioning from Jessica Martinez, another attorney for the plaintiffs from Jenner & Block, King walked the court through the two-day schedule and protocols for both medication and aspiration abortions. The doctor also pointed out that carrying a pregnancy to term carries “much higher risk of potential morbidities,” including possible death, compared to abortions.

King stated that advanced nurse practitioners could “absolutely” carry out the more complicated aspiration abortions with training if the physician-only law was struck down, emphasizing that they already perform other similar labor and childbirth procedures with higher risks of complications.

In addition, the doctor illustrated that the delays in abortion care the laws cause can make many patients noneligible for medication abortions, and many feel very strongly that they do not want an aspiration abortion, in part because women with histories of sexual abuse can be traumatized by the more invasive procedure, which can leave them feeling “stripped of their autonomy.”

Assistant Attorney General Clayton Kawski briefly cross-examined King, attempting to drill down just how burdensome travel and delays for abortion care are for patients and illuminate the potential risks in allowing non-physicians to perform that care, opining that recruiting more physicians could expand abortion services in lieu of changing laws.

King stood by her stance that there is no medical benefit to having physicians perform medication abortions and resisted Kawski’s attempts to make murky the exact toll travel distances take on women seeking abortions in Wisconsin, stating that she knows around 600 women per year travel from the Badger State to neighboring Minnesota for that care.

In her 20 years as an OB/GYN in which she has seen thousands of patients, she said, “I know for a fact that there are many women who have to travel hundreds of miles to access care.”

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