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Wisconsin Seeks SCOTUS Review of Abortion Law

(CN) - Wisconsin asked the Supreme Court to overturn an appeals court decision that struck down the state's law requiring admitting privileges for abortion doctors.

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.

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

A federal judge temporarily enjoined the law from taking effect before the Seventh Circuit made it permanent.

In a strongly worded opinion, U.S. Circuit Judge Richard Posner, writing last November for the majority on a Seventh Circuit three-judge panel, slammed the Wisconsin 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.

November's Seventh Circuit ruling focused 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.

Posner also questioned the "weird private civil remedy for violations," which allows a father or grandparent of the unborn child to sue if an abortion was performed by a doctor lacking admitting privileges, whether or not the mother was injured during the operation.

On Tuesday, Wisconsin asked the U.S. Supreme Court to uphold the abortion admitting-privileges law, regardless of legislators' motives, claiming that the law "does not impose an undue burden on abortion access."

The Badger State claims that Posner and Judge David Hamilton, who joined the Seventh Circuit majority opinion, improperly inquired into the legislators' subjective motives for passing the law rather than limiting the examination to whether it was constitutional.

"The panel majority demonstrated the nature of its inquiry into subjective motives through the types of questions it asked at oral argument, accusing the legislature of not 'actually car[ing] about health' and '[not] car[ing] about' poor women," the certiorari brief states. "The court even asked: 'Governor [Scott] Walker before he withdrew from the presidential competition said that he thought abortion should be forbidden even if the mother dies as a result of not having an abortion. Is that kind of official Wisconsin policy?'"

Wisconsin sought to differentiate legislators' opposition to abortion from other kinds of impermissible motives, such as discrimination against women or minorities.

"Legislatures have the authority to express a 'preference for normal childbirth' over abortion, and 'many decent and civilized people' oppose at least some abortions. It follows that 'decent' opposition to abortion is of an entirely different constitutional character from, for example, discrimination against racial minorities, and does not justify the same type of subjective inquiry into legislative motives," Wisconsin claims.

The Supreme Court held a hearing on a similar Texas law earlier this month. In that case, the Fifth Circuit upheld Texas' abortion restrictions.

With the bench now one member short after the death of Justice Antonin Scalia last month, a 4-4 split would leave the Fifth Circuit's ruling in place.

A similar 4-4 split in Wisconsin's case would leave the Seventh Circuit's conflicting decision in place, and create an unreconciled legal schism on the issue across the nation.

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