Richard A. Posner, a judge on the United States Court of Appeals for the 7th Circuit, may have been appointed by President Ronald Reagan, but lately, few can match his scorn for attempts to limit access to abortion and contraception.
Last year, during oral argument, Posner told an attorney for the University of Notre Dame, which was suing to block coverage of contraception on its insurance plan, to "stop babbling," and eventually eviscerated the university's claim in his opinion. Posner's opinion Monday, striking down Wisconsin's requirement that abortion providers have admitting privileges at local hospitals, took such dismissals to the next level.
The same day in 2013 that Gov. Scott Walker signed the requirement into law, Planned Parenthood of Wisconsin and Milwaukee Women’s Medical Services sued. They argued the law would place an unconstitutional burden on women by shutting down safe and legal abortion clinics under the guise of protecting their health. The state claims the law simply protects the health of women seeking abortions.
Monday's opinion marks the second time Posner condemned this particular abortion law — he previously struck it down on a preliminary basis — but this time, the stakes are even higher. The Supreme Court will soon consider the same question when it takes up Texas' similar law next year in what is expected to be the most important abortion decision in decades.
Posner, joined by President Barack Obama appointee Judge David Hamilton, sided with the clinics, while a third judge, David Manion, dissented. Unlike most legal opinions, Posner's opinion laid out his reasoning in particularly searing and accessible language. Here are his most trenchant explanations:
- The law gave abortion providers two days over the weekend to comply. "The legislature’s intention to impose the two-day deadline, the effect of which would have been to force half the Wisconsin abortion clinics to close for months, is difficult to explain save as a method of preventing abortions that women have a constitutional right to obtain," Posner responded. As for the state claiming legislators had no idea if clinics could comply or not, Posner wrote, "That insults the legislators’ intelligence. How could they have thought that an abortion doctor, or any doctor for that matter, could obtain admitting privileges in so short a time as allowed?"
- Posner also had no patience for the state's argument that getting an abortion from a doctor with admitting privileges is safer for women's health. "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges," he wrote.
- The implication of laws like the one in Wisconsin is that abortion providers are uniquely dangerous to women's health. But Posner dismissed that. "Complications from an abortion are both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges," he said, citing several peer-reviewed studies. "The official Wisconsin figure for 2013 is even lower," Posner pointed out, than the low national average: "1 complication per 404 abortions of all types."
- In response to a story an anti-abortion doctor told at trial, describing a woman who had a possibly avoidable hysterectomy after an abortion, Posner replied, "That is the only evidence in the record that any woman whose abortion resulted in a medical complication has ever, anywhere in the United States, been made worse off by being handed over by her abortion doctor to a gynecologist, or other specialist with relevant expertise, employed by the hospital to which she’s taken. And the example doesn’t actually have anything to do with admitting privileges. The abortion doctor didn’t need admitting privileges at a hospital in order to call an ambulance to take his patient to the nearest hospital, or to communicate with the treating doctor at the hospital—neither of which he did."
- It wasn't the only time Posner found the state's medical evidence sorely lacking. "The state presented no other evidence of complications from abortions in Wisconsin that were not handled adequately by the hospitals in the state.... The only medical evidence that had been submitted to the legislature had come from a doctor representing the Wisconsin Medical Society— and she opposed requiring that abortion doctors obtain admitting privileges. The only testimony presented to the legislature that admitting privileges are important to continuity of care was presented by a representative of Wisconsin Right to Life who happens not to be a doctor."
- He also saw a double standard: "No other procedure performed outside a hospital, even one as invasive as a surgical abortion, is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified radius of where the procedure is performed. And that is the case even for procedures performed when the patient is under general anesthesia, and even though more than a quarter of all surgical operations in the United States are now performed outside of hospitals," Posner wrote. He added, "Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions."
- "The defendants argue that obtaining admitting privileges operates as a kind of Good Housekeeping Seal of Approval for a doctor," Posner conceded. "True; but obtaining the seal does not require that the hospital in which the doctor obtains the privileges be within 30 miles of his clinic. The defendants argue that admitting privileges improve continuity of care. But nothing in the statute requires an abortion doctor who has admitting privileges to care for a patient who has complications from an abortion."
- Although the doctors in question have tried to comply with the law, many of them have been unable to get privileges, yet another burden on their work. Posner noted, "It is difficult to hire such doctors, not only because it’s difficult for abortion doctors to obtain admitting privileges (especially within a prescribed radius of the clinic) but also because of the vilification, threats, and sometimes violence directed against abortion clinics and their personnel in states, such as Wisconsin, in which there is intense opposition to abortion."
- Posner also called out the "weird private civil remedy for violations," which allows the "father, or a grandparent," of the “aborted unborn child” to sue for damages if a woman had an abortion performed by a doctor who didn't have admitting privileges. "Were the law aimed at protecting the mother’s health, as the state contends, a violation of the law could harm the fetus’s father or grandparent only if the mother were injured physically or psychologically as a result of her abortion doctor’s lacking the required admitting privileges," Posner writes. "But the statute requires no proof of any injury of any kind to the mother to entitle the father or grandparent to damages upon proof of a violation of the statute."
- The law, Posner pointed out, disproportionately affects women who can't afford to travel long distances to clinics out of state. "The State of Wisconsin is not offering to pick up the tab, or any part of it."
- He singled out what he sees as the real game here: Even though some people may want to ban abortion outright, Posner wrote, "What makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions regarding women’s health—and the abridgment challenged in this case would actually endanger women’s health." But, he added, "persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them. They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion." If that's not clear enough, Posner continues, "Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure— abortion—that rarely produces a medical emergency."
The ball is now firmly with the Supreme Court.