judge court gavel

A federal appeals court on Monday upheld a lower court decision that struck down a law requiring doctors who perform abortions in Wisconsin to have hospital admitting privileges.

In a 2-1 decision, with a 24-page dissent by Senior Judge Daniel Manion, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that the state law, enacted in 2013 but never enforced because of court challenges, was an unlawful infringement on abortion rights.

“Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority,” Judge Richard Posner wrote for the panel, later calling that battle to overturn Roe “a steep uphill fight.”

Planned Parenthood and Affiliated Medical Services sued the state after the law was enacted, arguing that the requirement would force the shutdown of the AMS clinic in Milwaukee because its doctors could not get admitting privileges. That amounted to restricting access to abortions in Wisconsin, they argued.

“At Planned Parenthood, our top priority is patient safety,” said Teri Huyck, CEO of Planned Parenthood of Wisconsin. “As the court affirmed, this law does nothing to enhance the health and safety of patients. The intention of this law was to put obstacles in the path of women seeking safe, legal abortion care in Wisconsin.”

The law was signed by Gov. Scott Walker on July 5, 2013, and required providers to have privileges in place by July 8. Privileges were to be at hospitals within 30 miles of clinics.

Enforcement of the law was initially delayed by U.S. District Judge William Conley, until he issued a permanent injunction in March. The state appealed the case to the Seventh Circuit.

“There are those who would criminalize all abortions, thus terminating the constitutional right asserted in Roe and Casey and a multitude of other decisions,” wrote Posner, an appointee of President Ronald Reagan. “And there are those who would criminalize all abortions except ones that terminate a pregnancy caused by rape or are necessary to protect the life or (in some versions) the health of the pregnant woman. But what makes no sense is to abridge the constitutional right to an abortion of the basis of spurious contentions regarding women’s health — and the abridgment challenged in this case would actually endanger women’s health.”

Posner also noted that the evidence of the medical benefit of requiring admitting privileges for abortion providers was “weak” in a similar law in Texas that was upheld by the U.S. Court of Appeals for the Fifth Circuit, and “non-existent” in Wisconsin’s law.

In his dissent, Manion, also a Reagan appointee, said that the majority opinion “marks the latest chapter in our circuit’s continued misapplication of the Supreme Court’s abortion jurisprudence.”

“Among other benefits, the requirement promotes continuity of care and helps to ensure that abortionists are properly credentialed and qualified,” Manion wrote. “It also works in tandem with Wisconsin’s ultrasound requirement to facilitate informed decision-making on the parts of doctor and patient alike.”

Posner was joined in the majority by Judge David Hamilton, an appointee of President Barack Obama.

The U.S. Supreme Court last week decided that it would review the Texas law. Anne E. Schwartz, spokeswoman for state Attorney General Brad Schimel, whose office defended Wisconsin’s law in court, said that issue would be decided by the high court’s ruling on the Texas law, and that the state would seek a Supreme Court review of the Seventh Circuit decision.

Posner wrote that abortion opponents showed their true intention with the law was to restrict abortion access by only requiring abortion providers to obtain admitting privileges, when providers of other, more dangerous, medical procedures were left alone.

“Nor is it likely to have been an accident that the Wisconsin legislature, by making its law requiring admitting privileges effective immediately, would have prevented most of the abortion doctors in the state from performing any abortions for months (for it usually takes months to obtain admitting privileges) had the district court not issued a temporary restraining order followed immediately by a preliminary injunction,” Posner wrote.


Ed Treleven is the courts reporter for the Wisconsin State Journal.