Wisconsin’s Lawyer Pressed by Appeals Judges on Abortion

Wisconsin’s lawyer met with a hail of questions from U.S. appeals court judges while he tried to defend a state law that requires doctors who perform abortions to have local hospital admitting privileges.

State Assistant Attorney General Daniel P. Lennington, seeking reversal of a lower-court order freezing the statute pending a trial on a constitutional challenge, was unable to mount his argument before the three-judge panel cut him off today at the federal appeals court in Chicago.

U.S. Circuit Judge Richard Posner asked Lennington if Wisconsin’s Legislature had plans to impose similar regulations in other areas, given that more than 60 percent of surgeries in the U.S. are done on an outpatient basis, including some more medically dangerous than abortion.

The lawyer said he was “not aware” of any such measures.

“Why was abortion singled out?” Posner asked. “If there isn’t a medical reason, what is it?”

Wisconsin seeks an order overturning U.S. District Judge William M. Conley’s Aug. 2 decision to block enforcement of the law compelling abortion doctors to affiliate with hospitals within 30 miles (48 kilometers) of their clinics pending a trial on the merits.

Abortion Restrictions

The debate over that state’s measure follows the passage of more than 200 abortion restrictions nationwide since a Republican-led state-legislative push began in 2011. During that time, more than 70 clinics closed or stopped offering the procedure even as legal battles continue.

Wisconsin’s bid today follows by a month Texas Attorney General Greg Abbott’s U.S. appeals court victory overriding a trial court decision to block the same restriction in his state.

Parallel cases are proceeding in North Dakota, Alabama and Mississippi.

While Wisconsin argued in court papers that its provision was enacted to protect women’s health by ensuring continuity of care, Posner called that “a general argument applicable to all out-patient procedures.”

“Why did they start with abortion, because it begins with the letter ‘A’?” he asked.

Trial Pending

Attorneys for Planned Parenthood of Wisconsin, which opposes that state’s measure, say it’s medically unnecessary and would force facilities to close, putting an unconstitutional burden on a woman’s right to have an abortion.

Carrie Flaxman, a Planned Parenthood lawyer, said today the organization’s doctors were seeking to comply with the mandate. Only one doctor had been rejected for admitting privileges thus far, she said.

U.S. Circuit Judge David Hamilton asked Flaxman whether the legal challenge would end if in 12 months all of the doctors who sought affiliation had obtained it.

Clinic Operations

“No,” she replied, saying the law would have a continuing effect on clinic operations and the ability of doctors to perform abortions at more than one facility.

Republican Governor Scott Walker signed the bill known as Act 37 into law on July 5, a Friday, three days before it was to take effect. Conley issued a temporary order to block its implementation on July 8.

Posner, Hamilton and the third panel judge at the hearing, Daniel Manion, each questioned the need for such a swiftly-imposed requirement when the process of obtaining the necessary credentialing is typically measured in months.

Punishment for a doctor who violates Wisconsin’s law includes fines of as much as $10,000 and possible revocation of the physician’s medical license.

Hamilton also asked Lennington about an included civil remedy entitling parents and grandparents of an aborted fetus to sue the doctor for emotional harm, a provision the judge said extends that right to rapists and their parents.

‘Emotional Injury’

“Emotional injury from what?” Hamilton asked.

“The law doesn’t explain where the damages flow from,” the state’s lawyer replied.

“Presumably it has a purpose,” Hamilton said.

The Texas law was blocked after a trial on the merits by U.S. District Judge Lee Yeakel on Oct. 28.

Three days later, Abbott, a Republican, won a ruling from the U.S. Court of Appeals in New Orleans allowing his state to enforce the law while it appeals the trial outcome. On Nov. 20, the U.S. Supreme Court upheld that appellate order, prompting at least a dozen clinics to close.

There are four elective-abortion clinics in Wisconsin. Three of them, in Madison, Milwaukee and Appleton, are Planned Parenthood facilities, and the fourth is run by Affiliated Medical Services in Milwaukee, according to the state.

Immediate enforcement of Act 37 would have forced Planned Parenthood’s Appleton facility to close and reduce service at one of the Milwaukee clinics, according to the plaintiffs. The Affiliated Medical Services facility in Milwaukee would have closed too.

The lower court case is Planned Parenthood of Wisconsin Inc. v. Van Hollen, 3:13-cv-00465, U.S. District Court, Western District of Wisconsin (Madison). The appellate case is Planned Parenthood of Wisconsin Inc. v. Van Hollen, 13-2726, U.S. Court of Appeals for the Seventh Circuit (Chicago).

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