A federal judge on Wednesday extended a temporary restraining order barring enforcement of a state law requiring hospital admitting privileges for doctors who perform abortions at clinics, and will rule on a longer-term injunction within two weeks.
U.S. District Judge William Conley heard oral arguments on the law Wednesday morning, which was signed by Gov. Scott Walker on July 5 and took effect July 8. But Conley immediately stopped implementation of the law after Planned Parenthood of Wisconsin and other abortion providers sued and issued the restraining order.
Conley asked that both sides submit to him by Friday a short brief about whether he should appoint an independent medical expert to help him decide whether there is a legitimate state interest in requiring doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic where abortions are performed.
Conley also scheduled a trial in the case for Nov. 25, when he would hear testimony about the law from experts and witnesses. Should he decide to issue the preliminary injunction, it would remain in effect until Conley makes a final decision on the case after the trial.
The temporary restraining order can last two weeks, but Conley said he would certainly decide on the injunction before that time is up.
The restraining order is keeping open two clinics in Milwaukee and one in Appleton whose doctors do not have admitting privileges at hospitals within 30 miles. It does not affect the Planned Parenthood clinic in Madison, whose doctors can admit patients to local hospitals.
During Tuesday’s argument, Conley focused on questions he had after reading briefs and written testimony submitted by both sides. He sounded a more skeptical tone about the state’s arguments, writing off entirely its argument that abortion providers do not have the right to speak for the rights of their patients.
The U.S. Appeals Court for the 7th Circuit, of which federal courts in Wisconsin are a part, “has repeatedly stated that the standing of physicians is not open to question,” Conley said.
Executive Assistant Attorney General Steven Means said afterward that the state might appeal that issue but not before the scheduled trial.
Conley said the state has to show the law has not created an undue burden for women seeking abortions and that it has a legitimate governmental interest in creating the law.
“We’re certainly at the margins of what’s necessary,” he said.
Looking at affidavits submitted by the state regarding hospitalizations required for complications related to abortion, he said, “I’m having trouble discerning what the advantage is.”
Conley took Assistant Attorney General David Lennington to task when he said the issue was “a slam dunk.” He pointed out that Wisconsin doesn’t require doctors in any other medical field who perform outpatient procedures to have hospital admitting privileges.
Conley also asked Lennington for evidence showing that requiring abortion providers to have admitting privileges was necessary for the small number of cases in which complications occurred in the clinics and not at home afterward. But Lennington had little to offer beyond anecdotal evidence in affidavits that were submitted.
“The fact that a few doctors are willing to say this is a good idea is not enough when you have the burden of proof,” Conley said.
For the plaintiffs, Conley questioned whether it would be an undue burden for abortion providers to simply get hospital admitting privileges. But Planned Parenthood lawyer Carrie Flaxman said the process can be lengthy and it is not at all certain that hospitals will grant privileges at the end of it.