Burdens and Case Law Debated in Close of Wisconsin Abortion Trial

Attorneys and U.S. District Judge William Conley are seen during closing arguments in a remote bench trial over Wisconsin abortion access on Thursday.

MADISON, Wis. (CN) — The burdens presented by Wisconsin’s abortion laws were balanced against national precedent governing abortion access in federal court on Thursday as a bench trial for Planned Parenthood’s challenge to the laws came to a close.

Planned Parenthood of Wisconsin, or PPWI, brought its lawsuit in January 2019, contesting state laws which only allow doctors to perform two types of abortions and require women seeking abortion-inducing drugs to see the same doctor on two separate visits. The laws—defined in the complaint as the physician-only, same-physician and physical-presence laws—also mandate the same doctor who saw a patient during the first visit be physically present in the room when a woman is given an abortion pill during the second visit.

Advanced practice clinicians—health care professionals such as advanced nurse practitioners and certified nurse-midwives with specialized 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 state’s 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. Wisconsin Attorney General Josh Kaul and members for the state boards of nursing and medical examining are among the defendants named in the complaint.

At the outset of closing arguments Thursday, U.S. District Judge William Conley seemed receptive to the plaintiffs’ “legitimate claims” that the highly trained class of nurses barred from performing abortion services are more than capable of doing so and that Wisconsin’s access restrictions present “a substantial burden” to women seeking abortions.

Nevertheless, the Barack Obama appointee cast doubt on the ability of a single district court to advance their claims given the state of abortion regulations in Wisconsin and the broader temperature regarding abortion laws nationwide, including in the right-shifting Seventh Circuit and conservative-heavy U.S. Supreme Court.

“I’m not sure under the current makeup of the Supreme Court and, frankly, the need for fealty to our laws at this particular time that this is the best time to advance this particular challenge,” Conley said, conceding that his comments were “a hell of a fastball to put over the plate” before the plaintiffs had a chance to present their closing arguments.

Protesters on both sides of the abortion issue gather outside the Supreme Court in Washington in 2018. (AP Photo/Susan Walsh)

Lori Day, representing PPWI from New York-based firm Jenner & Block, reiterated the argument that Wisconsin’s laws constitute an undue burden on women seeking abortions, harm advanced practice clinicians professionally and have no medical basis even though delays for medication abortions can force women into more invasive and costly suction abortions. She said “defendants presented zero evidence of medical benefit” for the laws over the previous three days of trial.

But Conley replied that, despite his sympathy for the plaintiffs’ position, he is “still stuck with the lack of any wiggle room in the language” of the applicable case law, though he agreed that “there’s really no evidence of medical benefit for any of these three restrictions.”

The judge focused repeatedly on where the threshold for a significant or substantial burden was for women seeking an abortion and where the Wisconsin laws may fall in that regard, given that the U.S. Supreme Court and lower courts’ murky determinations of that burden have not been soundly quantified in terms of, say, the percentage of women prevented from accessing an abortion under a given set of restrictions.

Day argued that the fact that “restrictions that do actually prevent women from obtaining an abortion” are substantial, but she could not determine “where on the line that happens” with certainty.

As for PPWI’s equal protection claims, Day made the case that even though abortion procedures are inherently sex-based, the restrictions still single women out for discrimination, not to mention the nurses denied the ability to provide these services despite their extensive training and experience.

Conley admitted that “there’s an aspect of paternalism here for women seeking an abortion” not present in any other medical circumstance.

Assistant Attorney General Brian Keenan closed for the government, stating that Conley seemed to understand what the state is saying in that current abortion law “reads as a flat rule, and it would be difficult to go against that.”

Regarding the same-physician and physical-presence laws, Conley challenged Keenan on whether any of the defense’s witnesses articulated a medical benefit for these restrictions, reminding him that one of those witnesses seemed to acknowledge that both laws were specifically drafted and enacted to increase obstacles to obtaining an abortion.

Keenan responded that lawmakers could have reasonably thought the continuity of seeing the same doctor for both visits would be beneficial and that the restrictions, though they may limit abortion access, have not stopped a substantial number of women seeking one from obtaining it.

The state’s attorney did not see the restrictions rising to the level of an equal protection violation, even though he conceded that the statute says “women” and abortion is inherently sex-based.

“You could understand that’s why many women would say that’s exactly the point,” Conley said, opining that he found the physical-presence law in particular to be “obviously intended to restrict abortion access,” which is unique from any other medical procedure.

At the conclusion of Thursday’s roughly 90-minute virtual hearing, Conley said he would try to enter his decision within 30 to 60 days of final post-trial briefing, which is currently scheduled through Jan. 11.

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