Milwaukee Journal Sentinel
POSTED: 10:39 p.m. HST, Jul 08, 2013
LAST UPDATED: 04:22 a.m. HST, Jul 09, 2013
MADISON, Wis. » After a hastily called hearing, a federal judge Monday put a 10-day freeze on a new state law requiring doctors who perform abortions to have hospital admitting privileges.
In a 19-page opinion issued Monday evening, U.S. District Judge William M. Conley cited a “troubling lack of justification” for the law and said he would stay enforcement of the admissions provision until July 18, a day after a more deliberate courtroom hearing scheduled before him next week.
“There will almost certainly be irreparable harm to those women who will be foreclosed from having an abortion in the next week either because of the undue burden of travel or the late stage of pregnancy, as well as facing increasing health risks caused by delay,” the judge wrote. “Since the state has failed to date to demonstrate any benefit to maternal health of imposing this restriction, there is no meaningful counterweight recognized by the United States Supreme Court to justify the act’s immediate enforcement.”
Conley’s ruling does not affect a separate provision of the new law requiring women to undergo an ultrasound before having an abortion. At next week’s hearing Conley could potentially choose to reinstate the full law or keep it blocked.
Abortion clinics filed the lawsuit in federal court in Madison on Friday immediately after Gov. Scott Walker privately signed the law, which went into effect Monday. The measure had been expected to cut the number of clinics offering abortions in Wisconsin from four to two and cause one of the remaining clinics to sharply reduce the number of abortions it provides, according to the operators of the clinics.
Without Conley’s action, one clinic would have had to cancel 30 abortions or related appointments, with additional cancellations also needed at the other two clinics, attorneys for the plaintiffs said Monday.
A spokeswoman for the state Department of Justice, which is defending the law, had no comment on the temporary stay. Lester Pines, an attorney representing Planned Parenthood who had been briefed on the ruling, called it a “very good decision” that would prevent clinics in Milwaukee and Appleton from having to cancel procedures this week.
In court Monday afternoon, Pines pointed to the Wisconsin Medical Society’s opposition to the law, saying that key doctors’ groups had publicly said that the law is not needed to protect women’s health. The measure was intended to limit access to abortions, he argued.
“The state cannot show that there is a legitimate medical purpose for this,” Pines said.
Pines cited a declaration in the case signed by Douglas Laube, a former chairman of the Department of Obstetrics and Gynecology at the University of Wisconsin and president of the American College of Obstetricians and Gynecologists.
“This requirement is medically unjustified and will have serious consequences for women’s health in Wisconsin,” Laube said in the declaration.
Backers of the law, which also requires women seeking abortions to get ultrasounds, have said that the measure could benefit both fetuses and pregnant women, and that the law will ultimately be upheld by the courts.
Daniel Lennington, an assistant attorney general with the state Department of Justice, focused in Monday’s hearing on what he said are the potential benefits of the law compared with its other impacts.
“I don’t think that the plaintiffs have provided any proof that a woman’s right to an abortion is unduly burdened,” Lennington told Conley.
Planned Parenthood and Affiliated Medical Services brought the federal lawsuit against state Attorney General J.B. Van Hollen, Dane County District Attorney Ismael Ozanne, Safety and Professional Services Secretary Dave Ross and the members of the state Medical Examining Board — all of whom have authority to enforce the law or issue sanctions.
Planned Parenthood has abortion clinics in Milwaukee, Madison and Appleton; Affiliated has one in Milwaukee. A fifth Wisconsin clinic that offers abortions, in Green Bay, plans to stop offering abortion services on Aug. 1 for reasons unrelated to the admitting privileges law, according to the suit.
Teri Huyck, president and chief executive officer of Planned Parenthood of Wisconsin, said last week that without a stay, her group would have had to close its Appleton abortion clinic and offer at least 50 percent fewer abortions at its Milwaukee facility. Affiliated would have to close its Milwaukee clinic, according to the suit.
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 groups’ complaint.
The clinics asked the court to immediately block the law, contending it violates the Constitution’s due process guarantee, puts an undue burden on a woman’s right to choose abortion and unconstitutionally treats doctors who perform abortions differently than doctors who perform other procedures.
Lennington argued that northern Wisconsin residents could still receive abortions in Milwaukee, Madison, Chicago or the Twin Cities and that the additional drive wasn’t an undue burden. But Conley noted the driving conditions that can prevail in wintry northern Wisconsin.
“You haven’t driven those roads very often,” he said.
In his ruling, Conley, who was appointed by President Barack Obama, also said that the law will lead to delays in receiving abortions and that many women receiving the procedure at the affected clinics are poor and may find the additional travel beyond their means.
Challenges to similar laws in other states have had some success, at least initially. Nationally, the matter will likely ultimately be decided by higher courts, according to legal experts on both sides of the issue.
The bill’s proponents have said the law was aimed at providing the best available health care for women and ensure they have an opportunity to see the fetus on an ultrasound monitor and consider the decision to have an abortion in the light of that.
Susan Armacost, a lobbyist for Wisconsin Right to Life, said last week that clinics should be able to get admitting privileges if they have competent doctors.
Citing Laube’s declaration and a 1999 study, Pines said Monday that abortion is an outpatient service that requires hospitalization in only 0.3 percent of cases. When it does, patients quickly get into nearby hospitals without problems under the existing system, he said.
Pines said getting admitting privileges at a hospital within 30 miles would be impossible in some cases because some hospitals require physicians to admit a certain number of patients annually, and abortion doctors rarely have reason to admit patients to hospitals.
“The Legislature has set up a Catch-22,” Pines said after the hearing.
Lennington said that figure cited by Pines showed complications do sometimes occur after abortions but told Conley he could not verify the statistic on such short notice.
“That’s the best I can do at this time, your honor,” he said.
Larry Dupuis, an American Civil Liberties Union of Wisconsin attorney representing Affiliated Medical Services, said Monday that 30 appointments scheduled for today at the group’s Milwaukee clinic would have had to be canceled if the law remained in place.