Judge extends abortion law restraining order, to rule later on injunction

2013-07-18T05:35:00Z Judge extends abortion law restraining order, to rule later on injunctionED TRELEVEN | Wisconsin State Journal | etreleven@madison.com | 608-252-6134 madison.com

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.

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(20) Comments

  1. GodHeals
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    GodHeals - July 18, 2013 4:49 pm
    Look the Republics are the Prison Industry and Gods Side:

    Accelerate the growth of unplanned, mom's financially unprepared, perpetual poverty for low income, primarily minority babies. What does society get out of it: The great feeling of planned family's growing taxes to support unprepared adults in a global work force where the unprepared turns to crime as the only quick fix.

    "(August 2012) Since 2002, the United States has had the highest incarceration rate in the world. Although prison populations are increasing in some parts of the world, the natural rate of incarceration for countries comparable to the United States tends to stay around 100 prisoners per 100,000 population. The U.S. rate is 500 prisoners per 100,000 residents, or about 1.6 million prisoners in 2010, according to the latest available data from the Bureau of Justice Statistics (BJS).1

    Men make up 90 percent of the prison and local jail population, and they have an imprisonment rate 14 times higher than the rate for women.2 And these men are overwhelmingly young: Incarceration rates are highest for those in their 20s and early 30s. Prisoners also tend to be less educated: The average state prisoner has a 10th grade education, and about 70 percent have not completed high school.3 Incarceration rates are significantly higher for blacks and Latinos than for whites. In 2010, black men were incarcerated at a rate of 3,074 per 100,000 residents; Latinos were incarcerated at 1,258 per 100,000, and white men were incarcerated at 459 per 100,000.4 Since 2007, however, the incarceration rate in the United States has tapered slightly and the 2010 prison population saw a decline—of 0.3 percent—for the first time since 1972, according to the BJS."


  2. Wis_taxpayer
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    Wis_taxpayer - July 18, 2013 10:44 am
    Here's a better idea, why don't you get accredited at a hospital Trader.... you would have the exact same chance as any doctor out there. See the problem?

    Now, being the fair minded person you are, I know that you would have no problem in requiring all Doctors to be accredited and have admitting rights with a hospital within 30 miles of where they practice. Oh wait, that would mean almost every clinic in the State of Wisconsin would have to close their doors...... still not seeing the problem?

    Wait until you have to have some stitches for a bad cut and you go to your local clinic only to find it closed! because the Doctors could not get admitting accreditation to a hospital within 30 miles.... because the hospitals require accredited doctors to admit a certain number of patients to those hospitals in order to get and hold accreditation..... How about now.... see the problem?
  3. Michigosling
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    Michigosling - July 18, 2013 10:43 am
    Judges are supposed to protect the public from legislatures and executives who try depriving us of our freedom, especially from collusion by legislators and executives to deprive us of our freedom.
  4. lmjohnson532
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    lmjohnson532 - July 18, 2013 10:24 am
    What would be "compelling moral argument for interfering with a woman's right to choose" that you believe conservatives could make?
  5. Traderjoe
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    Traderjoe - July 18, 2013 10:22 am
    Not so interesting when you consider the Supreme Court ruled in Roe v Wade that though a state cannot completely deny a woman the right to terminate her pregnancy, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life at various stages of pregnancy.
  6. array1
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    array1 - July 18, 2013 9:33 am
    Because hospitals are not required to give even qualified doctors admitting privileges. Pretty clear that republicans would not even consider changing the law to ensure qualified doctors get admitting privileges as this would undermine their ultimate goal..
  7. gdp
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    gdp - July 18, 2013 8:57 am
    The whole purpose behind the move to permit abortion from its historic prohibition was to ensure the safety of the woman in the procedure, a recognized state interest in deferring to the privacy of the matter. So, if the State reinforces that safety with a demand of hospital affiliation? Not so simple as one may suppose.
  8. Traderjoe
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    Traderjoe - July 18, 2013 8:46 am
    Well here is an idea! Why not find accredited Doctors that can aquire admitting privileges. There are certainly Hospitals within 30 miles of any Milwaukee clinic. There are also Hospitals in Appleton and Oshkosh . I guess the questionI would ask is WHY can't the current Doctors aquire the privelage ?
  9. FearorLove
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    FearorLove - July 18, 2013 5:04 am
    If the law takes full effect, Planned Parenthood would have to close its Appleton abortion clinic and Affiliated would have to close its Milwaukee clinic because their doctors don't have admitting privileges at hospitals within 30 miles of the clinics. Planned Parenthood's Milwaukee clinic would be able to offer half the abortions it does currently, according to the group.

    That would mean abortions in Wisconsin would not be available north of Madison, and after the 19th week of pregnancy would not be available anywhere in the state, according to the suit. Affiliated is the only clinic that provides abortions after the 19th week.
  10. RichardSRussell
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    RichardSRussell - July 18, 2013 12:45 am
    Regardless of the screen name this poster has chosen, he or she cannot move much further to the right.
  11. RichardSRussell
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    RichardSRussell - July 18, 2013 12:44 am
    "Lennington had little to offer beyond anecdotal evidence in affidavits that were submitted."

    The plural of anecdote is not data.
    A story is not a study.
  12. Fartinthewind
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    Fartinthewind - July 17, 2013 11:16 pm
    Did you read the article jrclen?

    The state has most definitely claimed the law represents reasonable controls and restrictions. The judge has told the state it must demonstrate a legitimate and compelling governmental interest that warrants instituting controls that restrict a woman's rights.

    Can the government meet that burden? Only time will tell.
  13. Stuck In The Middle With You
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    Stuck In The Middle With You - July 17, 2013 10:43 pm
    What I think is a good thing is when gun owners think some new legislation is coming that they get so whipped up they have to run down to their gun shop to buy a few more weapons and stock up more cases of fresh ammo for their bunker while paying top dollar to the gun dealers. Gotta keep the economy moving.
  14. Fartinthewind
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    Fartinthewind - July 17, 2013 5:40 pm
    I'm intrigued. The judge believes the state has the burden of proving it has a "legitimate governmental interest in creating the law."

    I find the concept of "legitimate governmental interest" to be an interesting topic. I've tried to engage conservatives in discussions along that line of reasoning on several threads covering several different issues. Conservatives avoid those discussions like the plague. I've got my hunches as to the conflicting rationales conservatives will use to justify their avoidance, but I'll hold off and see what the conservatives themselves have to say.

    My prediction? Conservatives will continue to avoid discussing the concept of "legitimate governmental interest".

    My preliminary assessment? Avoiding the concept of "legitimate governmental interest" avoids inadvertently exposing the rampant hypocrisy, false narratives and phony memes that permeate the conservative agenda.

    When it comes to this case in particular, I think conservatives can make a compelling moral argument for interfering with a woman's right to choose. I don't think they can make a compelling legal argument that the state has a legitimate governmental interest that supports infringing on a woman's right to choose in the manner proscribed by recently passed laws. This ain't no slam dunk!
  15. jrclen
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    jrclen - July 17, 2013 3:57 pm
    The Liberals have their undies in a bunch over the new Abortion control legislation. I think that is a good thing. Perhaps they can now begin to understand how we gun owners feel about their constant attacks and infringements on our 2nd Amendment rights. To paraphrase the anti gun left - No one is taking away your right to an abortion. These are just reasonable controls and restrictions.
  16. ThreadKiller
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    ThreadKiller - July 17, 2013 1:38 pm
    If you are in the middle of the road you're going to get run over. Move to the right to allow faster traffic to pass you.
  17. Redsolocup
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    Redsolocup - July 17, 2013 1:33 pm
    It needs to be decided if this new law creates an undue burden on women seeking an abortion...a right granted to them by another law- Roe v. Wade- heard of it? You basically summed up the judge's right to intervene in your own post! Great job!
  18. PapaLorax
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    PapaLorax - July 17, 2013 1:25 pm
    the law of the land is Roe v Wade which bars states from implementing undue burdens to abortions. not sure where you think this judge went further than that.
  19. PapaLorax
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    PapaLorax - July 17, 2013 1:22 pm
    "He pointed out that Wisconsin doesn’t require doctors in any other medical field who perform outpatient procedures to have hospital admitting privileges."

    This is what I have been waiting to find out.
  20. Report Abuse
    - July 17, 2013 12:55 pm
    I thought our judges were supposed to rule on whether a law violated the constitution or any other laws. They are NOT to decide or rule on whether they think a law is good bad, or otherwise. Our elected reps create laws. Judges are just supposed to enforce laws.....not create them or block them.
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