A federal appeals court in Chicago has agreed with a lower court that a Wisconsin law requiring abortion providers to get admitting privileges at local hospitals is likely an unconstitutional burden on a woman’s right to an abortion. The decision from the Seventh Circuit, which splits with the Fifth Circuit’s preliminary ruling on a similar law in Texas, makes it ever more likely the Supreme Court will have the final word on such laws.
Judge Richard Posner wrote that the medical evidence the state had so far presented to support the law as anything other than a way to prevent women from getting abortions was “feeble, yet the burden great because of the state’s refusal to have permitted abortion providers a reasonable time within which to comply.” The state gave doctors two days, over a weekend.
He noted that "two of the state’s four abortion clinics--one in Appleton and one in Milwaukee--would have to shut down because none of their doctors had admitting privileges at a hospital within the prescribed 30-mile radius of the clinics, and a third clinic would have lost the services of half its doctors."
Posner had signaled his skepticism in oral argument, when, Bloomberg News reported, he'd interrupted the state's attorney to ask, “Why was abortion singled out? If there isn’t a medical reason, what is it?”
The state's intention matters because under binding Supreme Court precedent, states can pass only restrictions that don't present an "undue burden" on a woman's right to an abortion. The intention can be a legitimate health interest; it cannot be simply to shut down all of the abortion clinics in the state. In Texas, which notoriously passed the admitting privileges law despite Wendy Davis' filibuster, a lower court found that the law was enough of an undue burden to temporarily block it.
But the conservative Fifth Circuit disagreed, and the Supreme Court declined to overturn them. That law went into effect last month and immediately prevented a third of the state's abortion providers from operating. Litigation seeking to block similar laws in Alabama, Mississippi, and North Dakota is also underway.
Posner's decision focused on whether the admitting privileges law had any basis in actually protecting the health of women who have abortions, a procedure which has a very low complication rate. He left open the possibility that the state might come up with more evidence at the trial, but seemed distinctly unimpressed with what it did offer. In the meantime, he saw no urgency in letting the law go into effect. "It has been 40 years since Roe v. Wade was decided, legalizing (most) abortion throughout the United States, and it could not have taken the State of Wisconsin all this time to discover the supposed hazards of abortion performed by doctors who do not have admitting privileges at a nearby hospital," he wrote dryly.
He also focused on the impact the admitting privileges law would have on women's lives.
"Some patients will be unable to afford the longer trips they’ll have to make to obtain an abortion when the clinics near them shut down--60% of the clinics' patients have incomes below the federal poverty line." Some women, he added, would have to travel an additional 100 miles to get an abortion. "And that is really 400 miles--a nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children. For Wisconsin law requires two trips to the abortion clinic (the first for counseling and an ultrasound) with at least twenty-four hours between them."
The case was brought by the American Civil Liberties Union, the ACLU of Wisconsin, Planned Parenthood Federation of America, and Planned Parenthood of Wisconsin. “We’re glad that the court has prevented this law from taking effect,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “These kinds of decisions should only be made by a woman, her family and her doctor. Politicians should have no place in the complicated and personal decision about whether or not to end a pregnancy.”