Judges: Wisconsin Abortion Admitting Privileges Law Unconstitutional

By Patrick Marley, Milwaukee Journal Sentinel (TNS)

MADISON, Wis. — Federal appeals judges on Monday agreed with a lower court that a politically polarizing 2013 abortion law is unconstitutional, finding it endangered the health of women.

The provision of the law at issue — blocked by a court ruling immediately after Republican Gov. Scott Walker approved it 2 1/2 years ago — would have required doctors who provide abortions to have admitting privileges at a hospital within 30 miles of where they perform the procedure.

In its 2-1 ruling Monday, a panel of the 7th Circuit Court of Appeals in Chicago concluded the medical benefit to the requirement was “nonexistent” and “cannot be taken seriously as a measure to improve women’s health.”

“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,” Judge Richard Posner wrote for the majority.

A spokeswoman for Republican Attorney General Brad Schimel said he intends to ask the U.S. Supreme Court to review the decision.

Less than two weeks ago, the nation’s high court agreed to take a case challenging a Texas law that includes a similar admitting privilege provision. That law, upheld in June by the 5th Circuit Court of Appeals in New Orleans, is more extensive than Wisconsin’s and includes regulations that would shut down three-fourths of the abortion clinics in the Lone Star State.

In the Wisconsin case, Posner was joined by Judge David Hamilton. Posner was appointed by Republican President Ronald Reagan and Hamilton by Democratic President Barack Obama.

Dissenting was Judge Daniel Manion, a Reagan appointee. Manion determined the admitting privileges requirement helps ensure doctors are properly credentialed and promotes continuity of care and informed decision-making by patients.

“There is no question that Wisconsin’s admitting-privileges requirement furthers the legitimate, rational basis of protecting women’s health and welfare,” Manion wrote.

Posner’s fiery opinion picked up where he left off in October, when he presided over arguments in the case. The judge peppered an attorney for the state with skeptical questions, brought up comments Walker made on abortion during his brief run for the presidency, and stated he didn’t believe the abortion law provided any health benefits.

U.S. District Judge William Conley in Madison blocked the law almost immediately after it was approved in 2013 and struck it down as unconstitutional this March. Monday’s ruling means the requirement will remain unenforceable unless the Supreme Court goes in another direction.

The state’s two abortion providers, Planned Parenthood of Wisconsin and Affiliated Medical Services, had challenged the law, contending it would force Affiliated’s clinic in Milwaukee to close because doctors couldn’t get admitting privileges.

If that happened, the state’s three other abortion clinics wouldn’t be able to absorb Affiliated’s caseload, the clinics argued. Those clinics, all run by Planned Parenthood, are in Milwaukee, Madison and Appleton. The Appleton clinic stopped providing abortions last month because of staffing issues but is expected to resume providing them next year.

Doctors at Planned Parenthood’s clinics have admitting privileges at nearby hospitals. They work at the clinics part time and were able to secure privileges because of the separate practices they have. Affiliated’s doctors work full time at their clinic and cannot get privileges because they don’t routinely practice hospital procedures.

Admitting privileges allow doctors to admit patients to a hospital and treat them there, but privileges are not needed to get a patient into a hospital in emergencies. The state does not require admitting privileges for doctors who perform other outpatient services, including those that have much higher complication rates than abortion, Posner wrote.

Posner noted abortion clinics already are required to have transfer agreements with hospitals in case of complications.

“The requirement of admitting privileges cannot be taken seriously as a measure to improve women’s health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency,” he wrote.

The clinics did not challenge a separate part of the law that requires women seeking abortions to get ultrasounds. That requirement remains in effect.

©2015 Milwaukee Journal Sentinel. Distributed by Tribune Content Agency, LLC.

Photo: Timothy Krause via Flickr