From the prairies of Texas to the bayous of Louisiana, twenty-four states have passed laws heightening medical requirements for abortion-care providers. Recently, a federal appeals court struck down a provision in a Wisconsin law as unconstitutional, potentially upsetting state attempts to regulate abortions across the country.
The Wisconsin law required doctors providing abortion services to have admitting privileges at a hospital within thirty miles of the clinic in which they perform abortions. The State of Wisconsin argued that the provision ensures continuity of care by allowing an abortion care provider to continue treating a patient at a hospital if she suffers from any complications from an abortion procedure.
To obtain admitting privileges, doctors must prove that they have a record of performing the procedures for which they seek privileges. An abortion care provider would likely seek admitting privileges to a hospital’s obstetrics or gynecology department. To qualify, an abortion care provider might have to show recent experience in delivering children, for example. A typical abortion care provider does not have recent experience with these qualifying procedures because most doctors who provide abortion services do not perform these procedures in their line of work.
The statute also required doctors to obtain admitting privileges at a hospital within two calendar days of the law’s passage. Currently, eleven other states have passed laws with an admitting privileges provision, although typically these statutes have each provided doctors with months to come into compliance with the law.
The court’s decision came about because two reproductive health services providers, Affiliated Medical Services and Planned Parenthood of Wisconsin, challenged the law as an unconstitutional restriction on abortion.
The state of Wisconsin defended its right to pass abortion laws that advance women’s health, encourage continuity of care, and operate as a seal of approval to advertise a doctor’s qualifications.
Critics of the Wisconsin law countered that abortion care providers are systematically unable to obtain admitting privileges because doctors who provide abortions typically lack recent experience performing the procedures for which they seek admitting privileges—procedures related to complications as a result of an abortion. Typically, hospitals also require a doctor to work in a setting that is peer reviewed in order to grant admitting privileges, and abortion clinics are not always peer reviewed.
Affiliated Medical Services and Planned Parenthood of Wisconsin argued that the provision would effectively prevent women, particularly in rural areas, from being able to receive an abortion. Since abortion clinics in Wisconsin are already required by law to partner with local hospitals to transfer women easily from clinics to a hospital if the need arises, the new law provided no real gain to women’s health.
To show that a state law does not unconstitutionally restrict the right to have an abortion, a state must show that the law advances a legitimate state interest, such as the improvement of women’s health, and that the law does not overly burden women seeking access to abortion services.
Judge Richard Posner, writing for the majority of the United States Court of the Appeals for the Seventh Circuit, held that the Wisconsin provision was unconstitutional because it restricted women’s access to abortion with no tangible medical benefit to women’s health.
Posner distrusted the state’s argument that the law was intended to advance women’s health. Evidence presented at trial demonstrated that there were no admitting privileges requirements for other clinical outpatient procedures that carried a far greater risk of requiring hospital care than abortions. In addition, the Wisconsin legislature never made a finding that the admitting privileges requirement would actually improve women’s health when it passed the law.
Posner concluded that these findings, when coupled with the fact that the legislature only gave doctors two days to comply with the new law, supported his theory that the Wisconsin legislature’s real purpose in enacting the law was to restrict access to abortions in the state.
Posner also found that the Wisconsin law placed an undue burden on women seeking an abortion. If not for the trial court’s injunction against the Wisconsin provision, the statute would have forced two of Wisconsin’s four clinics to close. This result would place women in the position of traveling up to ninety miles to Chicago to obtain an abortion, without Wisconsin “pick[ing] up the tab” for low-income women who could not afford to travel, take off from work, or pay for child care services in order to make the trip, Posner argued.
After balancing the state of Wisconsin’s interest in promoting women’s health against the burdens the provision imposed, Posner determined that the provision placed an undue burden on women seeking abortions.
Seventh Circuit Judge Daniel Manion dissented from Posner’s majority opinion, arguing that any increase in the safety of women undergoing abortion procedures justified the provision. He noted that the provision had been passed in reaction to the death of three infants who had been delivered alive, but subsequently died at an abortion clinic. The state had no obligation to keep abortion clinics open that were unable to meet the standards of care Wisconsin required, Manion asserted, and Wisconsin should not have to relax its standards to keep abortion clinics open.
The Fifth Circuit panel held that the Texas statute’s admitting privileges requirement was not facially unconstitutional, even though it forced thirty-two out of the state’s forty abortion providers to close. However, that court also concluded that the law could not be uniformly enforced against all abortion providers, because doing so would place a substantial obstacle to women seeking abortions in certain regions of the state.
For example, the court found evidence that doctors who provided abortion services at the Whole Women’s Health center in McAllen, Texas were often denied admitting privileges at hospitals regardless of their qualifications. Without the McAllen clinic, women would have to travel 235 miles to the nearest abortion-care provider with admitting privileges. The Fifth Circuit court refused to apply the law to the McAllen clinic in light of the medical competence of the clinic doctors, and the burden it would place on women. However, the Fifth Circuit court found that the law could be appropriately applied to an abortion provider in El Paso, where competent doctors also struggled to obtain admitting privileges, but women had access to a clinic twelve miles away in Santa Teresa, Arkansas.
Judge Posner referred to the Texas case in his opinion on the Wisconsin law. He argued that lawmakers like the ones in Texas pass laws “in the name of protecting the health of women who have abortions,” yet only place obstacles to abortion without any health benefits.
The Supreme Court of the United States has granted certiorari to the Texas case and will examine two issues. First, is a court required to determine whether a law regulating abortion actually promotes women’s health? Second, if there is evidence that the law does not advance women’s health coupled with evidence that the law would cause a significant reduction in abortion services, is the law unconstitutional?
The Supreme Court will hear argument on these issues next year and may provide some clarity as to what degree a state must prove that its regulation of abortion services actually provides a tangible benefit to women’s health.