March 31, 2014 at 1:08 p.m.
AG asks Supreme Court to reinstate abortion provider law
Does the provider law protect the maternal health of women, or is it a ploy to restrict access to abortion?
AG asks Supreme Court to reinstate abortion provider law
The law requires abortion providers to have admitting privileges at hospitals within 30 miles. Supporters of the law say it protects the safety of women and the care they are receiving, while opponents say it is part of an effort to deny women access to safe, legal abortions.
Gov. Scott Walker signed the measure last July but U.S. District Court judge William Conley issued an injunction against it after Planned Parenthood filed suit to stop the measure. Van Hollen then appealed the ruling to the Seventh Circuit Court of Appeals, which affirmed Conley's decision last December. The case is slated for trial in May.
While the case proceeds, Van Hollen wants the injunction lifted.
"I believe Act 37 as passed by the Legislature is constitutional and am hopeful the U.S. Supreme Court will overturn the injunction of Act 37, which is currently in effect," Van Hollen said.
Wisconsin Right to Life legislative director Heather Weininger said her group was encouraged to see Van Hollen take the injunction to the high court.
"The safety of every woman is at stake," Weininger said. "Each day physicians who are performing abortions and do not have admitting privileges to a nearby hospital are putting women in danger."
Weininger said taking the injunction to the U.S. Supreme Court could set an example for other states facing hurdles to similar legislation.
"For anyone who opposes a physician performing an abortion from having admitting privileges within 30 miles of where the abortion is being performed, is simply putting the woman in a dangerous situation," she said. "Emergencies occur more often than reported, and if the physician had admitting privileges they would be there to provide better care for their patient who is experiencing the emergency."
But Planned Parenthood, which filed the lawsuit, says the law would drastically restrict access to safe and legal abortion, and says two of four abortion clinics in the state would be forced to close.
"It is deeply disappointing that politicians in Wisconsin continue to waste taxpayer dollars to litigate these dangerous and unconstitutional laws," said Teri Huyck, president and CEO of Planned Parenthood Advocates of Wisconsin. "Far from protecting women's health, the effect of this law if enacted would be to force an abortion later in pregnancy or cut off access to safe and legal abortion."
In granting and upholding the injunction, federal judges agreed.
In a December opinion, the U.S. Court of Appeals for the 7th Circuit unanimously upheld the preliminary injunction, saying Planned Parenthood was likely to succeed on its claim that the law would unduly burden women's access to safe and legal abortion without advancing any medical interest.
Planned Parenthood argues that physicians who provide safe and legal abortions at its health centers may be unable to obtain admitting privileges for reasons having nothing to do with their skills or credentials, including the religious affiliation of the hospitals and the bylaws of local hospitals.
Van Hollen's writ
The state Department of Justice is asking the Supreme Court to intervene - there's no guarantee it will - on two grounds.
One challenges the legal standing of abortion providers to bring a lawsuit based solely on the rights of their patients. The second asks the court to determine the constitutionality of a new abortion regulation designed to protect maternal health.
"The (licensing) requirement is intended to ensure that physicians are held accountable for the continued care of their patients when complications arise during an abortion," the DOJ asserts. "Most, but not all, physicians at the abortion clinics in Wisconsin have the required local admitting privileges. Those who do not would have to obtain admitting privileges to continue legally providing abortions."
In the first instance, the DOJ wrote, the Supreme Court has never addressed whether an abortion provider has statutory standing to pursue a claim based solely upon an alleged violation of the constitutional rights of that provider's patients.
"(The law) was never intended by Congress to serve as a statutory vehicle to assert in federal court the violation of another person's constitutional rights," the DOJ wrote. "Second, the Court should clarify whether abortion providers have standing to assert the constitutional rights of their patients when challenging abortion regulations aimed at protecting maternal health."
Indeed, the DOJ continued, the interests of abortion providers and their patients are not aligned when considering regulations aimed at improving maternal health.
"Abortion providers seek to avoid regulation to maximize the availability of abortion, whereas abortion-seeking women desire to avoid regulations that impose an undue burden on the right to an abortion but may favor regulation aimed at improving maternal health," the DOJ wrote. "When abortion providers challenge regulations aimed at improving maternal health, their interests are not aligned as to automatically create third-party standing to assert the rights of their patients."
Until the Seventh Circuit opinion, the DOJ claimed, other courts of appeal that have been asked to review admitting-privilege requirements have upheld them, saying they were rationally related to the state's interest in maternal health.
In Women's Health Center of West County v. Webster, for example, abortion providers challenged a state law requiring them to maintain surgical privileges at a hospital with obstetrical and gynecological care, the DOJ stated. The Eighth Circuit found "no difficulty in concluding that [the state law] rationally relate[d] to the state's legitimate interest in ensuring that prompt backup care is available to patients who undergo abortions in outpatient clinics."
Similarly, the DOJ recalled, in Greenville Women's Clinic v. Commissioner, the Fourth Circuit upheld similar admitting-privilege requirements under a rational basis test, while in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, the Fifth Circuit held that there are indeed significant state interests to withstand rational basis scrutiny for a very similar admitting-privilege requirement.
However, the DOJ stated, the Seventh Circuit held that the medical basis for the Wisconsin law was "feeble." The DOJ says the Supreme Court should resolve the conflicting decisions.
Richard Moore may be reached at [email protected].
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