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Abortion provider admitting privileges requirement: “… a solution in search of a problem”

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On Friday, U.S. District Judge William Conley issued a preliminary injunction blocking the new ALEC Wisconsin anti-choice law from going into affect.


A federal judge on Friday blocked until at least November a state law requiring doctors who perform abortions to have hospital admitting privileges.

It was the fourth time U.S. District Judge William Conley has temporarily blocked the law from going into effect. His 44-page decision placed the law on hold until the November trial that will determine whether the law is constitutional.

The law requires that doctors to have admitting privileges at hospitals within 30 miles of where they perform the procedure. […]

If the law goes into effect, it will close Planned Parenthood’s clinic in Appleton and Affiliated’s clinic in Milwaukee because doctors there do not have admitting privileges at hospitals that are near enough to the clinics. Planned Parenthood’s Milwaukee clinic would operate at half capacity.

From Judge Conley’s opinion (pdf)::

“For reasons previously discussed, defendants are unlikely to establish as a matter of fact that there is a reasonable relationship between the admitting privileges requirement and maternal health. Defendants’ position may have some merit if they could articulate a single, actual instance where a provider’s lack of admitting privileges had been a factor in an abortion patient’s negative outcome or the ability to properly consider or sanction a responsible provider for such an outcome in Wisconsin.”

“On this record, the admitting privileges requirement remains a solution in search of a problem.”

“Even if there were some evidence that the admitting privileges requirement would actually further women’s health, any benefit is greatly outweighed by the burdens caused by increased travel, decreased access and, at least for some women, the denial of an in-state option for abortion services.”

(bolding added, italicization from the opinion)

Of course, the taxpayers of Wisconsin (how come ALEC does not cover these costs?) will be paying to defend this onerous law in the federal courts, not just at the trial scheduled for November, where the “state” is unlikely to prevail, but the inevitable appeal to the 7th Circuit.

Wisconsin is one of 12 states which have laws requiring hospital admitting privileges (or access to doctors with admitting privileges) for abortion providers. From the Guttmacher Institute (pdf), current TRAP (Targeted Regulation of Abortion Providers) Laws:

15 states require abortion providers to have some affiliation with a local hospital.

– 3 states require that providers have admitting privileges.

– 12 states require providers to have either admitting privileges or an alternative arrangement, such as an agreement with another physician who has admitting privileges.

Federal judges have blocked the requirements in Alabama and Mississippi and a similar law is awaiting a ruling in North Dakota. Two other states which have the requirement were never challenged and are in effect (Utah and Tennessee) and two more states have passed the laws but not yet developed the regulations (Texas and Arizona).

One interesting thing to note is that should these cases make it to the respective appeals courts and the restrictions stricken, it will become established precedent in those circuits. That would make it unlikely that other states within those circuits would be able to apply such restrictions. Should it be further appealed to the Supreme Court and be declared an onerous burden, the restriction would be removed from all state laws.

From Cecile Richards, president of Planned Parenthood on the ruling:

“In Wisconsin, Texas, North Carolina and elsewhere we are seeing an unprecedented wave of attacks on women’s health, and people are fed up with it,” Planned Parenthood Federation of America President Cecile Richards said in a statement following Conley’s ruling.

Tweeting Friday night:

Overreaching by Republicans into issues of women’s health and reproductive rights will have consequences come election time. Instead of (just) getting mad, let’s get even.

2014 is a gubernatorial election year in Wisconsin and Texas, two states who have taken aim at women.

Let’s let them hear us roar … from the voting booth.

Elections Matter. When we vote, we win. And so do women and their families.

(Crossposted from Views from North Central Blogistan)


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6 comments

  1. JanF

    And when we force Republicans to own their policies, we can use that to encourage women and young people to vote in 2014 like they did in 2012.

    Sensing a losing issue, GOP in key states tries to slow anti-abortion push

    ”It’s a huge mistake if your ear is not in tune where people are,” said Republican state Sen. Dale Schultz in Wisconsin, who is trying to fend off more abortion legislation in the state’s GOP-controlled legislature, even though he says he personally supports it. ”And we were pushing people too fast. All we’re going to do is panic people and this is going to blow up if we don’t begin to moderate on some of this stuff.” […]

    GOP leaders say they are worried about alienating women and young people, who disproportionately favor abortion rights. These groups voted in lesser numbers than usual for GOP candidates last year. Democratic President Barack Obama won the women’s vote by 11 percentage points.

  2. Jk2003

    I am still kind of shocked that we are deali with this BS.  I saw a protest sign somewhere that said “I can’t believe I have to protest this shit again”. I couldn’t agree more.  Back to the future.

  4. JanF

    Van Hollen asks federal court to reinstate state abortion law

    Van Hollen filed the notice of appeal with the 7th Circuit U.S. Court of Appeals in Chicago but did not spell out his rationale in court documents. […]

    If Van Hollen were to succeed, the abortion law would take effect at least until the trial is held.

    Conley had previously stated in his ruling that he thought the state was unlikely to prevail at the trial and as such was barring the law from taking effect:

    Conley has said the case comes down to whether the state has a legitimate interest in requiring admitting privileges for doctors who provide abortion.

    To do that, the state needs to show doctors providing other procedures are treated similarly. The attorneys for the abortion clinics have noted doctors who provide riskier outpatient services do not need admitting privileges.

    The judge has noted that hospitalizations from abortion are rare. When they do occur, they often happen after women return to their homes, which in some cases are hundreds of miles from the clinic where a surgical abortion was provided or an abortion pill was given. The benefit of having admitting privileges at a hospital 30 miles from the clinic would do little if any good in those situations, Conley said during a hearing last month.

  5. JanF

    It turns out that one of the main reasons that Wisconsin abortion providers don’t have admitting privileges is that they are being denied admitting privileges by hospitals which are affiliated with churches, a large proportion of hospitals in the state.

    In a court filing last week that had to be very uncomfortable for Wisconsin Attorney General J.B. Van Hollen to make, the state has told three Catholic hospitals that they can’t deny abortion providers admitting privileges:

    Plans by three Catholic hospital systems in Wisconsin to deny admitting privileges to doctors who perform abortions would “be in active violation of federal law,” Attorney General J. B. Van Hollen’s Department of Justice said in a court filing last week.

    Federal law “provides that hospitals accepting federal funds may not discriminate against a physician because that physician has participated in or refused to participate in abortions,” the state Justice Department said in its filing in federal court.

    The issue came to light during the hearings on the new abortion law and while the Catholic hospitals believe that they have the right to deny privileges to anyone they choose, others disagree:

    But Gretchen Borchelt, senior counsel and director of state reproductive health policy at the National Women’s Law Center, said she does not know of any case law that would support refusing privileges to a doctor who has performed an abortion when neither the hospital nor its personnel would be required to participate in the procedure.

    The law’s protection for abortion providers has not been widely tested, Borchelt added.

    So there will be another reason to watch this case closely  because it could quickly become a freedom of religion issue.  

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