Good news, for now and for once: a federal appeals court has struck down a Wisconsin law requiring physicians who perform abortions to have admitting privileges at a nearby hospital. The measure has “nonexistent” medical benefits, the court found, and would create illegal, undue barriers to abortion access.
The Seventh Circuit in Chicago ruled 2-1 to strike down the law, which first passed in 2013, signed into being by your perpetual good buddy Scott Walker. It’s been in litigation ever since and has not been enforced. Another portion of the law requires women to have mandatory forced ultrasounds before an abortion; that’s been upheld and is currently in effect. Walker has praised it as “cool.”
Admitting privileges laws are designed to make it harder for abortion clinics to stay open, and that, the Seventh Circuit ruled, is precisely what the law would do. In his majority opinion, which you can read in full here, Judge Richard Posner said the benefits of admitting privileges, if any, are far outweighed by their negative effects on abortion access. The opinion is worth quoting at length, because of the elegant yet straightforward way he dismantles the state’s arguments in favor of the law, and raises an eyebrow at how quickly they moved to implement it:
The state points out that abortion doctors have now had more than two years since the statute was enacted in which to obtain admitting privileges. But the legislature’s intention to impose the two-day deadline, the effect of which would have been to force half the Wisconsin abortion clinics to close for months, is difficult to explain save as a method of preventing abortions that women have a constitutional right to obtain. The state tells us that “there is no evidence the [Wisconsin] Legislature knew AMS physicians would be unable to comply with the Act.” That insults the legislators’ intelligence. How could they have thought that an abortion doctor, or any doctor for that matter, could obtain admitting privileges in so short a time as allowed? The clinics would have had to close, and months would have passed before they could reopen.
The fixing of such a short deadline for obtaining admitting privileges, a deadline likely to deny many women the right to an abortion for a period of months while the abortion doctors tried to obtain those privileges, could be justified consistently with the Supreme Court’s abortion jurisprudence only if there were reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges. The district court correctly found that there is no reason to believe that.
A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges.
But now, because there is always a bummer lurking in these things, we remember that the Supreme Court is getting ready to consider a very similar case out of Texas . Whole Woman’s Health is arguing that two aspects of the abortion omnibus bill HB 2 are unconstitional: a requirement that all abortion clinics meet the standards of ambulatory surgical centers, and a requirement that doctors have admitting privileges at a hospital within 30 miles. If the Supremes decide those rules are constitutional in Texas (and possibly in Mississippi, in another case they have before them but have yet to take action on), the Seventh Circuit’s ruling will be overturned.
Admitting privileges, in other words, are shaping up to be a true and deciding battleground issue in abortion care. The Supreme Court is thought to be preparing to hear oral arguments in the Texas case around March, and will likely issue a decision in June.
Walker pictured in June 2013, a month before he signed the law into effect. Photo via AP Images