In a 2-1 ruling Monday, the 7th U.S. Circuit Court of Appeals upheld a district court ruling and shot down as unconstitutional a Wisconsin law requiring abortion providers to obtain admitting privileges at a local hospital. Wisconsin is one of 11 states that have tried to impose that requirement on providers although six of these have been blocked by the courts.
One of those laws, in Texas, is headed for review by the U.S. Supreme Court that could set aside the admitting privileges requirement permanently or give forced-birthers the green light to impose that requirement in other states and pass additional laws that could effectively end access to abortion where legislatures and governors choose to do so. Justice Anthony Kennedy is likely to be the decider in what everyone expects will be a close decision.
The admitting privileges provisions are just one of a number of so-called TRAP laws—targeted regulation of abortion providers—which are specifically designed to make abortions more difficult and more expensive to obtain. The laws include waiting periods of up to 72 hours, required counseling, clinic standards, ultrasounds, and other medically unnecessary measures. Foes of the Texas law have argued that physicians at outpatient clinics performing other medical procedures are not held to the same requirements as abortion clinics. The Texas Hospital Association notes that “thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges.”
Since the 1992 Supreme Court decision in the Planned Parenthood v. Casey case, courts have applied the undue burden standard when addressing abortion. Justice John Paul Stevens said in his partial concurrence/partial dissent in Casey that "[a] burden may be 'undue' either because [it] is too severe or because it lacks a legitimate, rational justification."
But that hasn’t stopped states from trying. And some circuit courts have gone along, giving pinched readings to the Casey ruling. Reproductive rights champions argue that many of these laws do, in fact, impose an undue burden, particularly for low-income women. In the case of admitting privileges or requiring clinics to retrofit their facilities to meet standards not required of other clinics, the burden on women is increased because it forces some clinics to close, meaning longer travel times and longer waits.
Foes of the Wisconsin mandate argued that it would force the closure of one of the state’s four abortion clinics because its two doctors can’t obtain admitting privileges at any of the 17 hospitals that are within the 30-mile radius set by the law. This, they said, would lead to delays in obtaining an abortion. That fact, they said, makes the law an illegal restriction on the procedure. Writing for the 7th Circuit majority in Planned Parenthood v. Wisconsin, Judge Richard Posner agreed, stating that evidence backing supporters’ claims that the Wisconsin law protects women’s health is “non-existent.” Posner had a whole lot of negative things to say about the law in his 29-page ruling, which deserves to be read in its entirety. Here’s a taste:
There are those who would criminalize all abortions, thus terminating the constitutional right asserted in Roe and Casey and a multitude of other decisions. 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 on the basis of spurious contentions regarding women’s health—and the abridgment challenged in this case would actually endanger women’s health. It would do that by reducing the number of abortion doctors in Wisconsin, thereby increasing the waiting time for obtaining an abortion, and that increase would in turn compel some women to defer abortion to the second trimester of their pregnancy—which the studies we cited earlier find to be riskier than a first-trimester abortion. For abortions performed in the first trimester the rate of major complications is 0.05-0.06 percent (that is, between five one-hundredths of 1 percent and six one-hundredths of 1 percent). It is 1.3 percent for second-trimester abortions—between 22 and 26 times higher.
Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure— abortion—that rarely produces a medical emergency. A number of other medical procedures are far more dangerous to the patient than abortion, yet their providers are not required to obtain admitting privileges anywhere, let alone within 30 miles of where the procedure is performed. 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.
The 7th Circuit’s ruling is out of step with the decisions of other circuit courts that have upheld admitting privileges mandates for abortion clinics as constitutional. Come next spring or early summer, however, it will be the Supreme Court’s ruling in the Texas case that determines whether Roe v. Wade remains battered but viable or is effectively a dead letter in states that want to make it so.