December 2, 2015
By Rebecca K. Smith, CLDC Board President & Cooperating Attorney
Last week, in Planned Parenthood of Wisconsin v. Schimel, the federal Seventh Circuit Court of Appeals rejected the Wisconsin law banning doctors from providing abortions if they don’t have hospital admission privileges within 30 miles. The court held that the state legislature’s requirement was grounded in a desire to obstruct women attempting to obtain abortions, not in a desire to protect women’s health. Thus, the law constituted an “undue burden” on women, which is the trigger for when a law unconstitutionally restricts a woman’s right to have an abortion.
The court noted that if the law had been implemented, two of the state’s four abortion clinics would have had to shut down because none of their doctors had admitting privileges at a hospital within the prescribed radius. Additionally, the capacity of the third clinic to perform abortions would have shrunk in half.
Despite this significant and intentional obstruction of a woman’s right to have an abortion, the law did not provide any actual protection for women’s health. The published scientific studies on the issue find that the rate of complications in abortions requiring hospital admissions is one-twentieth of 1 percent. Moreover, in the unlikely circumstance that hospital admission was required, the patient could simply be treated by a doctor that worked at the hospital. Finally, the court noted that “Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.” Yet there is no state law prohibiting doctors from performing colonoscopies unless they have hospital admission privileges with a 30 mile radius.
The court concluded: “Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority. . . . persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them. They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.
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.”