Seventh Circuit puts Wisconsin law requiring admitting privileges for abortionists on hold


Planned Parenthood is one of Wisconsin’s largest abortion providers.

The Seventh Circuit recently upheld an injunction, stopping a law from going into effect that would not allow an abortionist to perform an abortion unless that doctor had admitting privileges at a hospital within a 30-mile radius from the abortion clinic.  Planned Parenthood of Wisconsin and Milwaukee Women’s Medical Service, the only two abortion providers in Wisconsin, filed a lawsuit challenging the new law.  When the district court granted a preliminary injunction, the case was appealed.

Judge Posner, writing for the court noted that there was only a weekend between when the law was passed and when it was to take effect and that it takes two to three months to obtain admitting privileges at a hospital.  However, it was noted that five months after the law was to take effect, none of the abortionists have been granted admitting privileges and one doctor has been flat out denied his request.  Posner focuses part of his opinion on the fact that a weekend is not enough time to gain admitting privileges:

The impossibility of compliance with the statute even by doctors fully qualified for admitting privileges is a compelling reason for the preliminary injunction, albeit a reason that diminishes with time. There would be no quarrel with a one‐year deadline for obtaining admitting privileges as distinct from a one‐weekend dead‐ line, and if so that might seem to argue for a one‐year (or even somewhat shorter) duration for the preliminary injunction.

Posner also found an equal protection issue in this case, based on the fact that abortion was singled out from other medical procedures, stating, “An issue of equal protection of the laws is lurking in this case.”

Judge Manion, in his opinion, which concurred in part with the majority, found that the law met the rational basis test:

Wisconsin’s admitting-privileges requirement adds an extra layer of protection for all of the patients of abortion doctors. Indeed, every circuit to address the issue has held that admitting-privileges requirements further states’ legitimate interests.

He points out that the state does have a reason to single out abortion, “Wisconsin had a perfectly good reason for addressing abortion first—namely, the Gosnell scandal. “  Manion went on to write:

There has been no high-profile exposure of substandard care by doctors who perform outpatient procedures other than abortion. However, just a few weeks prior to the enactment of Wisconsin’s admitting-privileges requirement, there was a shocking revelation of terrible conditions and procedures at an abortion clinic that received nationwide attention.

Manion concludes that the law “is rationally related to the State’s legitimate interests and should not create an undue burden to Wisconsin women’s right to abortion. “  However, he believes that the short time frame between the passing of the law and the law taking effect was not reasonable.  As such, he believes the preliminary injunction was appropriate.

The case will now proceed back to the district court where it will be heard on the merits.  The law will not take effect unless it is upheld by the court.

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