Planned Parenthood of Wiscons v. Brad D. Schimel

OF PARENTHOOD PLANNED INC., al.,

WISCONSIN, et

Plaintiffs-Appellees, Attorney SCHIMEL, General

Brad D. al., Wisconsin, Defendants- et

Appellants. 15-1736.

No. Appeals, Court of

United States Circuit.

Seventh

Argued Oct. 2015. Nov.

Decided POSNER, MANION,

Before HAMILTON, Judges. Circuit POSNER, Judge. Circuit 5, 2013, July On Governor Wis- signed into law a consin statute that the legislature passed pre- Wisconsin had ap- vious month. So far as relates to this doctor, peal prohibits the statute a under heavy threat of if he penalties defies the performing prohibition, (and only in Wisconsin doctors are allowed abortions, perform Wis. Stat. n 940.15(5)) admitting privi- § unless he has at a no more than leges hospital 80 miles from the clinic which the abortion is 253.095(2). § performed. Wis. Stat. admitting privileges by A granted doctor hospi- hospital becomes member pa- to admit tal’s staff and is authorized and to treat them hospital tients to that there; meaning “admitting that is the (in any doctor fact privileges.” Of course bring patient can to an any person) by the doc- emergency room to be treated hospital there. A that has employed tors obliged room is to admit emergency requiring emergency a patient and to treat uninsured. 42 patient care even if the 1395dd(b)(l). Moreover, § all Wis- U.S.C. Dupuis, Attorney, Jacques Laurence required by law consin abortion clinics Liberty Union of Wiscon- American Civil (see § 11.04(l)(g)) Med. Wis. Admin. Code Flaxman, sin, Milwaukee, WI, Y. Carrie agreements with local to have transfer Attorney, Planned Parent Federation process to streamline the hospitals DC, America, Washington, Lester A. transferring patient from the abortion Pines, Attorney, Cullen Weston Pines & nearby hospital, clinic to a which could WI, Evans, LLP, Madison, Roger K. Bach if the would be better important Attorney, Attorney, Salgado, Diana hospital in a than the served elsewhere of Amer- Planned Parenthood Federation though in that event the emergency room— ica, York, N.Y., Plaintiffs-Appel- New would send her to emergency room doctors lees. could in which she part best be served. Keenan, Attorney, Clay-

Brian Patrick of Wisconsin and KawsM, of the At- Planned Parenthood Attorney, ton P. Office Medical Services Women’s torney Department of Milwaukee General Wisconsin (also Services, Madison, WI, Medical Justice, Defendants-Ap- known as Affiliated AMS) op- commonly to as referred pellants. —which explained opinion upholding But in our only four abortion clinics Wis- we erate preliminary injunction plain employed -joined by two doctors consin— standing. legion The cases are Parenthood, tiffs filed suit on the by Planned provider, that allow an abortion such as day signed the statute into governor AMS, Planned Parenthood of Wisconsin or plaintiffs challenged the stat- law. enjoin to sue to as violations of federal law constitutionality 42 ute’s under U.S.C. (hence 1983) § litigable under U.S.C. 1983, provides remedy § a tort for state laws that restrict abortion. These by of federal law state officials violations emphasize eases not the harm to the abor employees. plaintiffs or other state The making very tion clinic of abortions diffi sought temporary and obtained first re- legally, though might cult to obtain be preliminary and then a in- straining order ground recognizing alternative junction against enforcement of the statute standing, clinic’s but rather “the confiden (not statute, just provision entire physician-patient tial nature of the rela regarding privileges for abortion tionship difficulty patients and the simplicity doctors—but for we’ll generally directly vindicating rights their without statute”). call that provision “the compromising privacy,” their as a result of (the attorney The defendants Wisconsin which “the Supreme Court has entertained general, attorneys, Wisconsin district challenges pre-en- both broad facial and Secretary Department Wisconsin of the as-applied challenges forcement to abor Services, Safety and Professional by brought physicians tion laws on behalf members of the Examining state’s Medical Horne, patients.” of their Isaacson v. Board) appealed grant from the Cir.2013); see also injunction. preliminary 28 U.S.C. Fallon, Jr., “As-Applied Richard H. 1292(a)(1). § in grant We affirmed the Challenges Third-Party Facial Stand Wisconsin, Planned Parenthood Inc. v. ing,” 113 Haro. L. Rev. 1359-61 (7th Cir.2013). Hollen, Van 738 F.3d 786 (2000). way judge That cleared the for the district consideration, A important related in trial, to conduct a full which he did. The see, this case heterogeneity as we’ll is the trial culminated in granting perma- his likely of the class that is to be affected injunction nent against enforcement of th'e If Wisconsin statute. one of the abor- statute, sought by which was the relief closes, in- placing clinics the state plaintiffs. (essentially, The defendants others, creased demand on the some state) again appealed, arguing have wanting experi- women an abortion will protects statute the health of women delay obtaining, may ence even be experience complications from an obtain, abortion, yet unable to not real- abortion. plaintiffs disagree, arguing likely ize that the new law is to have been go that if allowed into effect the statute the cause. Those women would be un- protect would not the health of women but likely might to sue. Other able simply make it more difficult for to find an doctor who had admit- abortions, them period, to obtain in viola- ting privileges nearby hospital, yet at a tion of rights recognized by constitutional delay incur still costs and because the law Supreme the U.S. Court. had reduced the number of doctors who might appear question There abe perform are allowed to abortions. Suits sue, about standing costs, since principal including to recover quan- some desiring victims of the statute are women delay, tification of the cost of would be plaintiff. and none of them is a awkward. A suit clinics and doctors at one admitting privileges obtain is more feasible relief seeking injunctive to obtain them at months for her and nine women what gives if successful Moreover, hospitals are win, hospital. another doctors If clinics and they want. grant required than rather permitted win. may be reluctant and some privileges, such held Supreme Court finally the And to abortion grant 179, 188, Bolton, 410 U.S. Doe hostility to great because there doctors (1973) (the companion 35 L.Ed.2d Wisconsin, though as we’ll see Wade, 113, 93 S.Ct. Roe v. case to granted now such hospitals have (1973)), that abortion 35 L.Ed.2d abortion doctors. a number of the state’s (remember two individual doctors laws similar to passed that have employed States in this case are plaintiffs longer im clinics) much Wisconsin’s have allowed first-party stand by abortion time a weekend—for plementation than limiting abortion challenge laws ing days from Mississippi 76 example, as allowed when, present case in Doe and the date, to effective statutory approval date well, of the laws are for violation penalties days. days, Texas 103 83 Wis. Stat. Alabama the doctors. visited (H.B. 1390), 331 2012 Miss. Gen. Laws 253.095(3), (4); Planned Parent §§ see Health Or enjoined Jackson Pennsylvania v. Ca Women’s hood Southeastern (5th Currier, 909, 760 F.3d 448 833, 903-04, 112 v. ganization S.Ct. 505 U.S. sey, ' Cir.2014); (1992) Legis. Ala. Serv.2013-79 2013 2791, (plurality L.Ed.2d 674 120 (H.B. 57), enjoined Planned Central opinion); Planned Parenthood of Southeast, 62, F.Supp.2d 52, Bentley, Inc. v. 951 Danforth, 428 U.S. Missouri v. (M.D.Ala.2013); Law (1976); 2013 Tex. Sess. Karlin L.Ed.2d 788 S.Ct. (H.B. 2), (7th Sess. Ch. Foust, Serv. 2nd Called 456 n. 5 Cir. 188 F.3d v. Greater in Planned Parenthood 1999); upheld Wisconsin Planned Parenthood Abbott, (7th Cir.1998). v. Health Services Surgical Texas Doyle, 162 F.3d Cir.2014). True, the 748 F.3d Friday law on a Although signed into by the Wisconsin passed had been statute 5, 2013), required (July Wisconsin’s statute days than before weeks rather legislature every doc- possession, by compliance—-the effect, enough aren’t it took but weeks abortions, admitting performs tor admitting privileges, get time which a 30-mile hospital at a within privileges the law governor signed until clinic which the doctor of each radius certainty that it would no there could be following Sun- by the performs abortions — law; the abortion doc until then become 2013). Stat. day (July See Wis. they’d be whether not know tors would 253.095(2), way was no §§ 991.11. There privileges. such required to obtain doctor, type of any or of the doctors July 7 none matter, As of obtain admit- for that could doctor Milwaukee) (in clinic either the AMS and there quickly, so ting had clinic Appleton if two Planned Parenthood’s way even have been wouldn’t within hospital at a admitting privileges days. As the been weekend days hadn’t distance found, required 30-mile a minimum of court takes district the doctors clinic, did two of and neither admitting three months obtain one to clinic. Milwaukee Planned Parenthood’s It took longer. often privileges and much appeal argument of date of oral plain- On the individual months for one of the ten injunc- preliminary grant It from the admitting privileges. to obtain tiffs law after the five to tion—almost months the other one eight months for took if endangered would have taken effect had it not been for tions is their abortion doc- tors don’t have The injunction temporary privileges. and the re- correctly district court found there is straining preceded ap- order that it—the no reason to believe that. A woman who the doctors for admit- plication of one of experiences- complications from an abor- ting privileges had been denied and none (either while still at the clinic where applications of the others had been the abortion was or at home granted. Had enforcement of the statute afterward) go hospital, will to the nearest stayed, not been two the state’s four treat regardless which will her of whether (the in Appleton abortion clinics—the one admitting privi- her abortion doctor has Milwaukee) only one north and one of .of leges. pointed As out in a brief filed the Milwaukee clinics—would have had to College the American of Obstetricians and shut down because none of their doctors Gynecologists, the American Medical Asso- at a admitting privileges had with- ciation, Society, and the Wisconsin Medical radius; prescribed capacity and the “it accepted practice hospi- perform of a third clinic to abortions would physicians tal-based to take over the care have shrunk in half. pro- of a and whether the abortion points out that abortion doc- vider has im- has no years tors have now had more than two pact patient’s on the course of the treat- since the statute was enacted in which to Bulun, Dr. expert ment.” As Serdar admitting obtain privileges. legis- But the appointed witness in by this case the dis- lature’s intention to impose two-day judge trict under Fed.R.Evid. testi- deadline, the effect of which would have fied, the most important factor would not been to half force the Wisconsin abortion admitting but whether there privileges, months, clinics to close for is difficult to agreement was a transfer between the explain preventing save as a method of said, hospital. clinic and the As we’ve abortions that women a have constitutional required abortion doctors in Wisconsin right to obtain. The state tells us that agreements. have such transfer See “there is no Leg- evidence [Wisconsin] § Admin. 11.04(l)(g). Wis. Code Med. physicians islature knew AMS would be treating The doctor at hospital proba- unable to comply with the Act.” That in- bly would want to consult with the doctor legislators’ intelligence. How .sults who had but for they thought could have that an abortion such a consultation the abortion doctor doctor, any matter, doctor for that could would not admitting privileges. need admitting privileges obtain in so short a happens, As it complications from an time as allowed? The clinics would have rarely danger- abortion are both rare and close, had to and months would have ous—a fact that further attenuates passed they reopen. before could need for abortion doctors to have admit- fixing of a such short deadline for ting privileges. Two in studies cited obtaining admitting privileges, a deadline by amicus curiae brief filed the American likely deny many right women the to an College of Gynecologists Obstetricians and period abortion for a of months while the by et al. and credited the district judge— abortion doctors privi- tried to obtain those ah, Tracy “Safety A. et of Aspiration Weitz justified leges, consistently could be with Abortion Performed Nurse Practition- the Supreme ers, Court’s abortion jurispru- Midwives, Physi- Certified Nurse only dence if there were reason to believe cian Assistants Under a Legal California Waiver,” health of women who have abor- 103 Am. J. Public Health in al., experience with One doctor extensive et (2013), Cleland Kelly 457-58 gynecology told about and Outcomes obstetrics Events Adverse “Significant & Abortion,” complication Obstetrics in a woman with case which After Medical (2013) that com- 166,169 Gynecology might, thought, he have from an abortion —find physi- of 112 only in out occur plications if her abortion hysterectomy avoided a aspiration first-trimester cian-performed hospital or had had doctor had called the (the surgi- type of most common abortions only That is the evi- admitting privileges. those abortion), percent and that 94 cal any woman in the record whose dence al., et Weitz are “minor.” complications complication in a resulted medical medical abor- tab. 2. For at 457-58 supra, States, ever, in anywhere the United has complica- (abortion by pill), rate tion handed by being worse off over been made al., et 1 in Cleland only tions is gynecologist, doctor to by her abortion ' official Wisconsin 2. The supra, at 169 tab. relevant, expertise, specialist or other with complica- is even for 2013 lower: figure hospital to which she’s employed types. And of all 404 abortions per actually example doesn’t taken. And the only physician-conducted finally admitting privi- anything to with have do major com- result aspiration abortions doctor didn’t leges. The abortion need (a hospi- which includes category plications hospital at a order admissions), 1 in 1732 tal take his call an ambulance to admission. require communicate hospital, or to the nearest 458-59; al., Cleland supra, at etWeitz hospital— at the treating doctor with al., tab. 2. supra, at 169 et did. As the district neither of which he the rate studies found These found, “any in the case of abortion judge percent; is below complications terms benefit hospital ad- requiring complications case incrementally care small.” continuity of percent. of 1 it is one-twentieth missions noted, abortion clin- for second-tri- And as Wisconsin complications The rate outpa- high- among slightly uniquely, appears, abortions is surgical mester ics— al., Frick et in Anna C. services percent. of medical Wis- providers er—1.3 tient Risk, Delivery on adopt of Prior Cesarean required by law “Effect consin—are Abortion Surgical of Second-Trimester intended to assure protocols transfer Gynecol- & Obstetrics Complications,” pa- any hospitalization prompt (2010). five-year period In ogy 760 complications seri- experiences tient who had who only women 2009 to hospitalization. See enough require ous experi- at clinics Wisconsin abortions 11.04(l)(g). §Med. Admin. Code Wis. transfer requiring complications enced evidence no other presented The additional hospital. Fifteen clinic to in Wisconsin from abortions complications at a had abortions who received by the adequately that were not handled clin- and left the Parenthood clinic Planned no documenta- And in the state. hospitals later complications apparent ic without requiring abor- tion of a medical need The rec- hospital. at a sought treatment admitting to obtain tion doctors figure comparable a ord not contain does legis- to Wisconsin presented had been is no evidence AMS clinic. There for the on the bill deliberating it was lature when inade- received of these women any challenged the statute that became hospital care because quate that had evidence only medical case. The lacked their abortions had had come legislature to the been submitted admitting privileges. representing from doctor the Wisconsin rather than one medically induced) pro-— Society requir- medically Medical she cedures opposed similar to abortion. —and ing that abortion doctors admitting obtain Jr., Dr. Thorp, expert John witness privileges. only testimony presented defendants, for the testified that abortion legislature that admitting privileges dangerous is more than D & or hyster- C important continuity are of care was oscopy because there' is increased blood presented by representative of Wisconsin flow a pregnancy. But during one of the Right happens to Life who not to be a plaintiffs’ Laube, experts, Dr. Douglas legislative doctor. Indeed the delibera- pregnant countered uterus responds virtually ignored provision tions con- better to treatments to stop bleeding, mak cerning admitting privileges, in- focusing ing procedures the risk of the roughly the provision requirement stead on another —a same. The district judge was entitled to challenged this suit that a woman testimony credit Thorp’s, Laube’s over seeking an abortion obtain an ultrasound credit too the placed studies evidence (if examination of her uterus first she major showed how complications rare already), might hadn’t done so in- of both hysteroscopy and second-trimester change her to duce her mind having about surgical are. See Morris Wort- abortion. Wis. Stat. al., “Operative man et Hysteroscopy in an § 253.10(3)(c)(l)(gm). Surgical Setting: Office-Based Review of Safety Patient and Satisfaction in 414 procedure performed other No outside a Cases,” Minimally 20 J. Gyne Invasive even one as hospital, surgical invasive as a (2013); cology 56 T.C. van et Kerkvoorde required by is Wisconsin law to al., “Longterm Complications of Office be performed doctors who have admit- Cases,” Hysteroscopy: Analysis of 1028 ting privileges hospitals speci- within a (2012); al., id. 494 supra. Frick et fied procedure radius of where the per- is formed. And that is the case even for moreover, Dr. Thorp acknowledged, procedures performed when the privileges are no impor more anesthesia, general under though and even tant for than for other outpatient more quarter than a of all surgical opera- procedures. Yet appears Wisconsin to be tions United States per- are now complications indifferent any formed hospitals. outside of outpatient Karen A. procedures, even they when al., Cullen et “Ambulatory Surgery in likely far more produce complications States, 2006,” United Centers Disease than abortions example, are. For the rate Control and Prevention: Health of complications National resulting hospitalization Reports 4, 2009, Statistics Sept. No. p. from colonoscopies pur done for screening 5, www.cdc.gov/nchs/data/nhsr/nhsr011.pdf poses is four times the rate of complica (visited 21, 2015, Nov. the was tions requiring hospitalization from first- cited in opinion). website that And is Cynthia trimester abortions. See KoW. true even for gynecological al., such proce- et Complications “Serious Within 30 as diagnostic dures dilation curettage Days of Screening and Surveillance Colo- (D C) (removal Uncommon,” & of tissue the noscopy from inside Are 8 Clinical Gas uterus), hysteroscopy (endoscopy of Hepatology & troenterology 171-72 uterus), (2010). the surgical completion of Operative colonoscopyhas an even miscarriage (surgical removal of fetal tis- higher major rate of complications, making sue remaining in the uterus a miscar- after it riskier than even second-trimester abor riage, which a spontaneous is al., abortion tions. Waye See Jerome D. et “Colo- If she clinic. from the hospital a farther Compli- Report of Prospective A noscopy: are paramedics calls an ambulance Gastroenterology cations,” Clinical 15 J. hospital' to the nearest likely to her take because (1992). that It is conceivable —- is her abortion doctor which hospital a at disapproval widespread admitting privileges. have unlikely to may be complications and their surgical abortions in the case of Likewise experi- who underreported —some at the clinic occur not complications when may tell hospitalized are them and ence immediately the abortion after during or complications staff hospital returned home. patient has after the is no but But there miscarriage. a from ready distance, lack may she un- Because widespread significant evidence clinic hospitals near the access derreporting. may live She performed. the abortion obtaining ad argue The defendants hospital which but not a hospital, near a kind of as a operates mitting privileges has her abortion the doctor who a Approval for Housekeeping Seal Good admitting privileges. seal does True; obtaining the but doctor. that what argument imagine the We can in which hospital that the require not was to make in this case did within 30 Wisconsin privileges doctor obtains the treatment abortion regulation of See, e.g., Women’s his clinic. miles of step first on simply the complications Inc. v. County, Health Center West potentially seri- regulation of all to a path Cir. Webster, 1378-81 the defendants But complications. ous 1989). in Wiscon abortion Several this; plausible nor is argued not have hospi admitting privileges lack sin who an effort such begin state would prescribed radius tals within rate very a low that has procedure of with Seals Housekeeping Good them —their has The statute complications. serious from of hospitals more distant Approval—at two more than books for on the by the been not excused yet are their clinic no there is indication years, yet identical having to obtain the from statute consideration given any has legislature the 30- within privileges any doc- for requiring mile radius. providers. abortion other than tors admitting argue that The defendants remarked judge had The district But continuity of care. improve privileges injunction preliminary granting the requires an nothing in statute issue, “await trial he to while privileges admitting has who doctor of an complete absence ... complications has care for clinical requirement [other] have to He doesn’t abortion. from an including [i.e., procedures outpatient] her hospital, treat her accompany abortion] [than risk greater those with her, statute her, etc. The there, call visit Wisconsin [the] certainly surgical evidence between distinguish also does in its enactment only purpose Legislature’s term The latter abortions. and medical safe, legal availability of restrict the was to by pills given induced to an refers State, given particularly this in one takes she by her doctor: to the ben- medical demonstrable any lack of home, an the takes clinic, goes pill the presented requirement either efit for its days later or two pills one pill or additional court.” or Legislature [to] the home Her procedure. to complete Wisconsin, Inc. Planned Parenthood is within hospital that any may be far 13-cv-465-wmc, WL Hollen, No. clinic, to Van close but her doctor’s miles (W.D.Wis. at *10 n. 26 Aug. the availability Wisconsin, of abortion in 2013) (emphasis original). Confirmato- (or without conferring an offsetting benefit ry statutory two-day benefit) evidence is the dead- any indeed on women’s health. line obtaining admitting privileges for in Virtually all abortions in Wisconsin are perform abortions, order to be allowed to (the performed at the four abortion clinics though that is of longer deadline course no three Planned Parenthood clinics and the operable. can’t And we forbear to men- clinic); AMS no other perform clinics civil private remedy the weird abortions, hospitals perform only a father, or grandparent, violations: The small fraction of the of the “aborted unborn child” is entitled to in the state. With the preliminary and damages, including obtain for emotional permanent injunction now the having lifted distress, psychological if the abortion the deadline for obtaining admitting privi- performed by doctor who lacked leges, doctors at three Planned Parent- admitting privileges. Wis. Stat. hood (Milwaukee, Madison, abortion clinics 253.095(4)(a). § Were law aimed at Appleton) been have able to obtain health, protecting the mother’s as the state nearby hospitals. contends, a violation of the law harm could But clinic, the' two doctors at the fourth grandparent only fetus’s father or if AMS, have been unable to obtain such injured physically mother were psy- any though even chologically as a result of her abortion hospitals are within a 30-mile radius of the lacking doctor’s required admitting clinic. privileges. But the requires statute no Not its doctors haven’t tried to proof any injury any kind to the obtain the privileges. The district court mother to entitle the father or grandpar- found credible their testimony that ent to damages upon proof of a violation of chances of being granted their 253.095(4). § the statute. Wis. Stat. privileges are “slim to none.” The reason Until and unless Roe v. Wade is is that almost all of their practice consists Court, Supreme overruled a statute of performing they abortions and therefore

likely to restrict to abortion access with no lack recent experience in performing inpa- offsetting medical benefit cannot be held to tient procedures for which hospi- be within the state’s enacting constitution tals grant admitting privileges. al authority. The have “an courts inde any Nor is of their practice peer clinical pendent duty constitutional to review [a reviewed, which hospitals also make a con- legislature’s] findings factual where consti dition of granting admitting privileges. rights tutional are at stake.” Gonzales v. One of the doctors couldn’t even obtain an Carhart, 124, 163-65, 550 U.S. application for admitting privileges at Au- (2007). 167 L.Ed.2d 480 The Wis Hospital, rora-Sinai because he couldn’t consin statute does not “further[] the le show that he’d “treated in a hospi- gitimate interest” of the state advancing tal or appropriate outpatient setting in health, women’s and it was not “reasonable which the subject Practitioner’s care was legislature] [the think” that it would. to evaluation peer through accept- review 146, 160, 127 Id. at S.Ct. able to the Metro Committee, Credentials Were it not injunctions for the (12) issued previous twelve months.” (and the district court temporary re- Froedtert Hospital rejected likewise his straining them), order that preceded application, provided because he neither statute would substantially (with-in curtailed “evidence of recent past oth- and retain it can recruit unless down evalua- “an nor activity” inpatient years) can or have who doctors—doctors for er care provide to ability [his] of within admitting privileges readily obtain environment.” inpatient the in patients itBut clinic. the of radius prescribed the rejected was also doctor AMS doctors, only not such to hire is difficult he him told Aurora-Sinai, which doctors for abortion it’s difficult because admitting privileges Ml to obtain ineligible (especially privileges admitting to obtain the admit to unable be he would because clinic) the of radius prescribed within year, per patients 20of required minimum vilification, the of because also but courtesy privi- obtain not he could that directed violence threats, and sometimes in privileges Ml from (which differ leges person- their clinics against abortion few very only admit to doctor allowing a Wisconsin, in which states, such in nel priv- having staff already without patients) abortion. to opposition is intense there hospi- Another hospital. at another ileges of Hospital Community because, Joseph’s tal, St. vulnerable particularly is AMS for obstet- Bend, applicants requires abortion only see, it’s the West to about as we’re to privileges admitting late-term rics/gynecology performs that the state in clinic previous babies to be have statute delivered the were But abortions. mean they course of which could years, clinics two Parenthood’s Planned upheld, is babies delivering live babies; and significantly live to close having face also do. doctors within what they perform, abortions the reduce having currently doc- despite years, a few as a require, hospitals the Moreover, all Hospitals admitting privileges. with tors privileges, admitting obtaining to condition doctor, main- to that a require generally performing in competence demonstrated responsi- be admitting privileges, his tain doctor the that procedures particular the minimum specified admitting a for ble pa- on hospital the perform to seeks Because annually. number a defense Although admits. he that tients from complications rate of very low the Hospital Mary’s St. Columbia from expert hospitalization, require that abortions evaluate would testified to meet. difficult may be quotas required a rec- requiring without quality physician’s acknowledged care, he point inpatient last ord (setting think might One seeking, moment) doctor that a side to one Mil-, to competence demonstrate to in have clinic would Planned procedures specific to capacity perform adequate have waukee are Hospitals privileges. sought area he the Milwaukee all serve proof that to demand' in which entitled have decide able to hospital be big no seeking work be AMS would demise event they want procedures abortions perform some Of so. Not deal. grant (the toBut condition there. latest perform in Wisconsin performed being qualified figures), complete there for which year abor- AMS’s procedures clinics perform in abortion performed were them to bar perform never Department tion doctors (see Wisconsin abortions. Abor- Induced performing Services, “Reported Health 2013,” www. Aug. Wisconsin, tions found, if the judge So, district as the dhs.wisconsin.gov/publications/p4/p45360- doc- AMS neither is valid statute were of those 13.pdf), abor- any perform allowed tors will (Presumably the by AMS. shut will tions, the clinic 918

not performed in abortion clinics were per- constitute fewer than one percent of the formed in hospitals.) abortions state, “the analysis does not end with the one percent

The Planned Parenthood clinic in Mil- of women upon whom the operates; statute waukee would have expand staff and begins it there.” Planned Parenthood facilities to accommodate such an influx Southeastern Pennsylvania v. Casey, (the su- Planned Parenthood clinic in Appleton pra, 505 894, U.S. at 112 S.Ct. (plu- is more than a hundred miles from Mil- rality opinion). For longer the waiting waukee, and the Madison clinic eighty list for an the more women who miles, distances would impose hard- want to have early-term abortions will per- ship on some women who live close to force up end having ones, late-term Milwaukee and are seeking abortions), are more dangerous. costly would be and could even be impossible problem, No given argues the difficulty state, recruiting since Chi- cago is only abortion doctors. miles Milwaukee, The district from judge ac- cepted there is at least one uncontradicted clinic in testimony Chicago -that perform will Planned Parenthood abortions could not after 19 absorb the weeks. The logic of additional abortions, position demand for state’s is that (of could result forbid both demand abortion exceeding clinics in supply) Mil- waukee to perform be an 8 to -10 delay week anyone obtaining living in that given city, abortion. Some the Chicago would have to for- clinics only go (and about away first-trimester 90 miles abortions and instead clinic, one get ones, second-trimester northern suburbs of which are Chi- more cago, is expensive only 74 miles present greater Milwaukee’s health center). city risks. Other women would be unable to obtain any abortion, because the delay position state’s is untenable. would push them past the 18.6-weeks- As we said in v. City Ezell Chicago, 651 (“last LMP menstrual period,” which is Cir.2011), the proposi likely precede conception by a couple of tion that weeks) deadline the Planned Parent- the harm to a constitutional right [can hood clinics’ willingness to perform abor- be] measured by the extent to which it tions. Only AMS will perform abortions can be exercised jurisdiction another beyond that (up limit to 22 and occasional- ... a profoundly [is] mistaken assump- ly 24 weeks of pregnancy). Women seek- tion. In the First Amendment context, ing lawful abortions that late in their preg- the Supreme Court long ago made it nancy, either because of the waiting list or clear that “one is not to have the exer- because they hadn’t realized their need for cise of his liberty of expression in appro- sooner, would be unable to priate places abridged plea on the that it obtain abortions in Wisconsin. may be exercised in some place.” AMS performs, about 250 late-term Schad v. Borough Ephraim, Mt. (and abortions each year that’s without the 76-77, 101 S.Ct. additional who would be pushed (1981), L.Ed.2d 671 quoting Schneider v. past 18.6 weeks an 8 to 10 week waiting New Jersey, 147, 163, 308 U.S. list). And, to repeat, it’s the only (1939). L.Ed. 155 The same clinic in Wisconsin performs such principle applies here. It’s hard to abortions. Although the points out imagine anyone suggesting that Chicago these late-term abortions currently may prohibit the exercise of a free- line and poverty the federal comes below within right religious-liberty or speech (and some Milwaukee live in them many of those that ground on the its borders even city and so of that west or sub- north the enjoyed in freely bemay rights them a For Chicago). from away farther urbs. finding place Chicago, to trip round in put it Court Supreme the asOr they Chicago should overnight stay to Canada, 805 v. rel. Gaines ex Missouri to return an immediate to up not feel 208 232, U;S. 83 L.Ed. 350, S.Ct. 837, 59 abortion, pro- may be the after Wisconsin (1938), of Wiscon- The State expensive. hibitively the give to the State obligation the tab, or up the pick offering to is not sin per- be can laws equal protection also be may women it. These any part that operate, its laws where only formed for the required time the to take unable It is jurisdiction. its own is, within or the work their away trip from round right legal equality the that there at evidence children. their care is obligation That be maintained. must judge, was by the district trial, credited the upon the Constitution imposed would who of women percent 24 to18 enti- governmental severally as States the surround-' Chicago or to travel need to ties&emdash;each own laws its responsible to be unable for an ing area per- duties rights and establishing trip. make an obli- is It its borders. within sons be cannot of which burden gation statute abortion-restricting An another, no upon State by one cast grounds on medical justified be sought to performance (here can be.excused State to believe only reason not requires fail may or do State another by what seen) that the have lacking, we do. to be valid, reason also are but grounds Organi- dispro Health are not Women’s restrictions Jackson also lieve See right at 457- Currier, F.3d on the supra, 760 effect their v. zation portionate, in A Woman’s benefits said the medical that we true It’s New- v. confer and Clinic believed are Side Women’s restrictions Choice-East Cir.2002), (7th 684, burden” 688 “undue man, impose an F.3d do 305 so ap- be Planned should See seeking standard abortions. burden the undue women whole, Pennsylvania than rather as a nation Southeastern “to plied Parenthood statement, 877, 874, 900- But U.S. a time.” 505 supra, Casey, state one v. Gon Gaines opinion); with tension (plurality 2791 seeming 01, though 146, with look- Carhart, do U.S. Jackson, nothing supra, 550 has zales v. Stenberg v. Car 1610; services availability of abortion 157-58, 127 at the S.Ct. ing 2597, 938, 120 the court S.Ct. Instead hart, lines. across (2000). different To determine judges district L.Ed.2d worried stat by the imposed conclusions different reach burden might states whether nearly court must (excessive), identi- constitutionality of “undue” is about ute jus against state’s the burdens “weigh cal statutes. ex what and to tification, asking whether according to true, though also It’s actually ad regulation challenged tent the irrelevant, 90-mile quoted just cases burden If a interests. state’s a vances own persons deal big is no trip necessary what exceeds significantly Greyhound or Amtrak can afford car ” ‘undue,’ interests, it is the state’s advance of Wis- percent more than But ticket. Arizona, Inc. in- Planned seeking abortions consin Humble, (9th 753 F.3d Cir.2014), Greater Texas Surgical Health Services v. say which is to Abbott, unconstitutional. The fee- supra, 597-98, 748 F.3d at (in bler the medical grounds case, they Greenville Women’s Bryant, Clinic v. nonexistent), the likelier is the burden 162, 170 Cir.2000), the right on the to abortion to dispropor- courts decided that the compelled evidence tionate to the benefits and therefore exces- only a conclusion that one clinic in each sive. state would close as a result of the statute and each of those two clinics

There are those who would criminalize only a small proportion of its state’s abor- abortions, all thus terminating the consti- tions. right tutional asserted in Roe and Casey multitude other decisions. And The Fifth Circuit also upheld another

there are those who would criminalize all requirement in the same statute —that abortions except ones that terminate a abortion clinics must meet the standards pregnancy by caused rape or are neces- for ambulatory surgical despite centers — sary to (in protect the life or some ver- the evidence that as a result of this re sions) the health of pregnant woman. quirement only eight clinics would survive But what makes no sense is to abridge the out the more than forty in existence constitutional right to an abortion on the when the statute was enacted. Whole basis of spurious contentions regarding Cole, Woman’s Health v. 563, 790 F.3d women’s health —and .the — abridgment chal- Cir.2015), cert. granted, lenged in this case would actually -, endan- 193 L.Ed.3d ger women’s health. It would do by (Nov. 2015). WL 5176368 The court reducing the number of abortion doctors in remarked the absence of evidence that the Wisconsin, thereby increasing the waiting remaining clinics could not expand their time for obtaining and that capacity to compensate for the closing of increase would in turn compel some wom- more than them, three-fourths of id. toen defer abortion to the second trimes- although one wouldn’t think it neces ter of their pregnancy the studies sary to parade —which evidence that the remaining we cited find, earlier find to be riskier than clinics would it extremely difficult to first-trimester abortion. For abortions quadruple their capacity provide to abor performed in the first trimester the tions, rate of require, would in the face of major complications is 0.05-0.06 percent fierce opposition to abortion clinics and the (that is, between five one-hundredths 1of difficulty of relocating abortion doctors percent and six one-hundredths of 1 per- clinics, the closed physical extensive cent). It is 1.3 percent for second-trimes- enlargement, to house additional ter abortions —between 22 and 26 times and doctors. higher. A great many Americans, including a

The burden on abortion imposed by the number of judges, legislators, governors, Wisconsin statute is greater than in the servants, civil passionately op- cases in which the Fourth and Fifth posed Cir- they abortion —as are entitled to cuits have upheld similar admitting privi- be. persons But who have a sophisticated leges requirements, because the plaintiffs understanding of the law and of the Su- in those cases failed to satisfy the preme courts Court know that convincing the that the challenged statutes would lead Court to overrule Roe v. Wade and a substantial decline in the availability of Planned Parenthood Southeastern abortion. In both Planned Parenthood Pennsylvania v. Casey is a steep uphill Tex- Greater In Planned indi- proceed of them some so fight, up- opinion our court excoriated as discourage abortions seeking rectly, in the injunction preliminary holding ob- for women difficult it more making had we ground that case, present name may They do them. tain abor- requiring evidence insisted on of women health protecting have tion doctors case in this abortions, yet health. women’s improve do may support they measures specific said Circuit The Fifth health, rather but for nothing little of an abortion analysis step “first This to abortion. impediments strew review, not basis ... is rational regulation upheld requirement, the Texas true (emphases Id. review.” basis empirical Woman’s the Whole Circuit Fifth “there is ‘never Indeed said Court, original). Supreme before ease now ra- under evidentiary proceedings’ role am- standards meet clinics take Id. We review.” tional basis requirement centers —a surgical bulatory for “rational motive to the a reference be Texas’s of only 8 permit will upheld if that a re- namely state of review basis” of laws— open, out remain to clinics abortion to invali- judiciary federal by the luctance law the when existed that more than to if difficult even that laws state date case in our comparably And passed. was sound to reference explain by defend privileges admitting requirement the serious harm cause do policy public to measure as seriously a be taken cannot depriving per- as classified be enough to the trans- because health women’s improve however property, life, liberty, or sons make clinics abortion that agreements fer understood. terms are broadly those to summon ability the plus hospitals, with call, the assure by phone a an ambulance constitu- curtails the that a statute But hospital nearby to a women of such abortion, as the access such to right tional emergency. of a medical statutes, the event sur- cannot Texas and Wisconsin the that evidence challenge without vive true their reveal of abortion Opponents to by reference justifiable is curtailment legislation they procure objectives when The by the statute. conferred benefits procedure a medical limited —abortion— irrational, may still yet be may not statute emergency. a medical rarely produces that exces- burden burden —a undue impose are procedures number A statute aims to the in relation sive than patient to the dangerous more far conferred likely the benefits re- are not providers their yet it is unconstitutional. if so it—and any- privileges admitting to obtain quired pre- was that of benefits evidence The of where miles alone within where, let dis- legislature Texas to the sented is it Nor performed. is procedure weak; in Fifth Circuit by the cussed that an accident been to have likely principal The it’s nonexistent. our case law making its legislature, Wisconsin Wisconsin, Dr. State for the witness im- effective requiring earlier, that testified Thorp, mentioned most prevented mediately, would undergo abor- for rate death per- doctors pregnant for other (for the same is tions for months forming any not substantiate he could But women. obtain months to takes usually that both admitted proposition not issued court district had privileges) report expert His low. very are im- rates followed restraining order temporary a risks “increased there states injunction. preliminary a mediately by death for women electing [abortion] com- The state insists that plaintiffs’ med- pared childbirth,” but the studies he ical expert and the expert neutral agreed cited long-term measured mortality rates with it that admitting privileges would be a rather than death resulting good from an thing abor- for abortion have. tion, and also failed to control But a fair interpretation socioeco- of their testimony status, nomic status, marital or a variety of doctor’s admitting privileges are other factors relevant of value to a patient to longevity. See because they suggest David hospital Reardon & Coleman, Priscilla granted has them “Short thinks Long well of Term Mortality doctor and Rates because he may be Associated able to expedite with First Pregnancy admission Outcome: Population who needs Register hospital Study Based care to Den- mark in which 1980-2004,” the doctor has priv- those Medical Science ileges. These PH71, Monitor did (2012); witnesses not testify PH75 Coleman et that an al., abortion doctor “Reproductive who lacks History admit- Patterns and ting privileges is a danger Long-Term patients. his Mortality Danish, Rates: A expert, neutral Bulun, Dr. Population-Based said that Record Linkage Study,” privileges could have advantages, but European he J. Public Health was comparing a doctor with (2012). In contrast, plaintiffs’ ex- one privileges; without he was not pert asked Dr. Laube apt tendered more study whether a shortage of doctors, which concluded that the risk of death though such abortion doctors as there associated with childbirth is 14 high- times were all had privileges, would prefera- er than that associated with abortion. See ble to there being enough abortion doctors Elizabeth Raymond G. & Grimes, David A. but not all with admitting privileges. He “The Comparative Safety of Legal Induced added that “if there’s a well-established Abortion and Childbirth in the United procedure for a agreement, transfer in my States,” 119 Gynecology Obstetrics & 215 mind that would be the most important (Feb.2012). factor to good ensure quality of care.” Dr. Thorp acknowledged that the num- There is no evidence that transfer agree- ber of abortion providers is declining, but ments provide inferior protection to the attributed (again this without substantia- health of women undergoing abortion com- tion) not to harassment but to pared our society’s to admitting privileges. When the “progressing in its recognition transfer agreements what con- and the availability of stitutes human life.” emergency-room And he agreed as we care and the rarity of noted earlier complications that admitting are that require hos- no pitalization more necessary for are compared abortion than for impact the other outpatient this statute surgical procedures. would have on access to Nei- abor- ther in Thorp Wisconsin, nor any it is other apparent witness for the the defendants defendants have was failed able to cite a make case in a dent in which the a district opinion woman who court’s had a complication granting the from an permanent injunction sought by abortion wasn’t plain- the properly treated for it be- tiffs. cause her abortion doctor lacked admitting privileges. The evidence was heavily Affirmed

weighted against the defendants. We do MANION, agree not Circuit Judge, with dissenting. the Fifth Circuit that evi- dence is in irrelevant a constitutional case In June legislature Wisconsin concerning abortion. a introduced statute requiring abortion even death —would a plications potentially have — mini- designed measures state regard signed was The statute hospital. nearby her imposition as an risks those mize month, following law into all, patients After rights. constitutional injunction preliminary a obtained plaintiffs undergo proce- likely more affirmed. court, we which the district meas- that discrete they when know dures Wis., v. Inc. Van Parenthood Planned to re- state by the taken been have ures Cir.2013). The Hollen, Recognizing harm. likelihood duce permanent granted then court district federal facts, four other basic these merits, finding that on the injunction simi- have examined circuits appellate unconsti requirement admitting-privileges requirements admitting-privilege lar right woman’s on a infringed tutionally basis rational assumed found Wis., Planned abortion. sense This is such common them. Hollen, F.Supp.3d v. Van Inc. any in mention scarcely warrant le novel on the Relying (W.D.Wis.2015). abor- case involves But this context. majority by the crafted standard gal are off. tion, all bets so reached Hollen, court district Van any negligible concern is not Safety onto state the burden shifting result Abortion—which healthcare. field justifying evidence empirical to adduce than oversight regulatory subject to less 962-64. Id. regulation. of its rationality of medicine—bears other area any almost well-established Under error. This reviewed we first When exception. no may precedent, Court Supreme require- admitting-privileges Wisconsin’s long so constitutionally regulate ex- cited numerous ment, my concurrence and does to act basis a rational it has care” “abortion egregious amples Gonzales burden. an undue impose article de- One nation. across states Carhart, 550 U.S. abortionist former practices tailed (2007). Wiscon Because L.Ed.2d Pennsylvania, clinic Gosnell’s Kermit sat requirement admitting-privileges sin’s con- personnel unlicensed included standard, I dissent. this isfies ad- and examinations gynecological ducting practices These ministering painkillers.

I named patient of a death resulted being after died 2013, Mongar, at least nine- who Karnamaya and 2009 Between pain and at anesthesia of sought abortions overdose given an women teen circulated reports also Media in Wisconsin medication. clinics Planned and assaulted physically Dr. Gosnell treatment that hospital received subsequently minor aon abortion a forced performed Sure- complications.1 for abortion-related uterus, in a woman’s remains fetal a and left considering patient no reasonable ly, excruciating pain. causing her in com- to result known procedure hospital clinic to AMS’s abortion from reveals ¶ also record 11. The 198 Dkt. 1. See an abortion complications from patients treat four serious that, at least during period, physi- by one AMS’s were procedure clinics at those who received peri- ¶ time During to a same the clinics Id. cians. transferred complica- suf- patients od, abortion-related abortion AMS least three ambulance they had tions, reported enough that women four complications serious fered in treat- that resulted resulting infections those post-abortion required, hysterectomy ¶¶ Additional- 12-13. hospital. Id. at a ment bear children. being able to longer patients no 2014, eight AMS at least 2009 ly, between ¶Id. 27. directly were transferred patients abortion 924

Dr. was ultimately Gosnell convicted of and does not constitute an undue burden murder for the deaths of three infants under Casey, I join the Fifth Cir delivered alive but subsequently killed cuit’s merits decision in Planned Parent light his clinic. In of the nationwide atten- hood Greater Texas Surgical Health tion that Dr. shop Gosnell’s Abbott, (5th horrors Services 748 F.3d 583 Cir. attracted, 2014), Wisconsin State reh’g Assembly denied, en banc 769 F.3d 330 acted pass 87, Cir.2014) (Abbott swiftly Act including II), which upheld a admitting-privileges requirement functionally issue, identical law on similar facts. protect order to the health All of and safety these facts lead me to the conclusion pregnant women who have the judgment chosen abor- court district tion. This lawsuit should be followed. reversed. For the reasons that follow, I dissent.

Dr. Gosnell was able to run his opera- tion in a regulatory vacuum derived in no II part small from the view held some that A. Wisconsin has a any regulation Rational upon Basis to practice his was a protect the health safety threat to the constitutional rights of his pregnant seeking patients. Although abor- we have recognized tion. may bring suit on behalf of their patients, it does not auto- Supreme Court’s surviving abortion matically follow that doctors cases have. repeatedly affirmed that have identical interests. The constitution- state has a substantial interest in regulat al right privacy exists spec- across the ing furtherance of its interests trum of medical procedures, yet in no oth- in promoting the health and safety preg er area of may medicine bring doctor a nant See, women. e.g., Gonzales v. Car suit on of a patient behalf solely because hart, 550 U.S. 124, 158, 163, 127 1610, S.Ct. the doctor safety finds a regulation cum- 167 (2007); L.Ed.2d 480 Stenberg v. Car bersome. Where regulation imposes hart, 914, 931, 530 U.S. 2597, 120 S.Ct. 147 on doctors measures designed improve (2000); L.Ed.2d 743 Mazurek v. Arm safety, doctor-patient interests strong, 968, 973, U.S. 1865, S.Ct. may diverge. Because that is precisely (1997) L.Ed.2d 162 (per curiam); the case in instance, we must look to Planned Parenthood Se. Pa. v. Casey, the regulation’s effect on prospective 846, 878, U.S. S.Ct. patient, not to the inconvenience the regu- (1992) L.Ed.2d 674 (plurality); Roe v. lation presents to the abortionist. Wade, 150, 163, 35 (1973). L.Ed.2d 147 So have Rather ours. than shift the burden to the See, e.g., Foust, Karlin v. 446, 188 F.3d provide state to justified reasons it was to (7th 478 Cir.1999); Planned enact issue, the law at we obligated of Wis. v. Doyle, 463, 162 F.3d uphold 467 Cir. law that regulates abortion where 1998). there is a rational basis to act so long as the law does not have the effect of impos- Although the court purports to be con- ing an undue burden a on woman’s ability sistent with cases, these in reality, its deci- to make the decision to choose abortion. sion undermines the state’s interest recog- Here, the court sets this burden of proof nized within By so, them. doing the court exactly backwards. Because Wisconsin’s sets a dangerous precedent jeopard- that admitting-privileges requirement protects izes the ability of states to enact laws the health and safety pregnant of women designed to curb risks to the safety and

925 restricted the that to a state law providers undergo choose to who of welfare phy only to licensed of provision the procedures including medical invasive — Mazurek, 117 U.S. at 520 sicians. law admitting-privileges whom women the Court re By ruling, so 1865. S.Ct. the Su- of reminder A brief protects. fact that the “cases reflect that its called on the emphasis repeated Court’s preme broad the States gives the Constitution health the protecting in interest state’s functions particular that to decide latitude women pregnant of safety and profes only by licensed performed bemay necessary. apparently is abortion chosen (cita S.Ct. 1865 at Id. sionals.” de- abortion Supreme Court’s omitted). The B. tion cisions thereafter, Stenberg, in Shortly that recognized Roe, Court Casey’s In com- Roe underscored Court seeing to in interest “legitimate has a of safety preg- to the health mitment medical any like it that a federal law down by striking nant women circum- under illegal procedure, be- partial-birth made that safety for insure maximum excep- stances a “health to contain it failed cause Roe, U.S. at the life patient.” of or preservation ... ‘for the ” that the concluded Court 705. S.Ct. 530 U.S. Stenberg, mother.’ health regulating omitted). interest legitimate (citation state’s 938, 120 at S.Ct. “obvi- health decision, maternal protect for its the foundation laying In [regulating] at least ously extends has it “re- first recalled the Court staff, to the his physician in the performing statutes invalidated peatedly availability of af- involved, to the abor- facilities methods process regulating any provision adequate ter-care, and to Id. health risks.” tion, significant imposed may emergency omitted). complication (emphasis 931, 120 S.Ct. at the state no doubt that left Id. Roe arise.” summa- then the Court Channeling Casey, procedure the abortion regulate “may health interest the state’s rized “ reasonably regulation it is ‘where extent follows: pregnant protection preservation judg- to the relates appropriate necessary, S.Ct. Id. health.” life or of maternal preservation ment has 705. mother,’ this Court [] health but may promote a State clear that made Roe’s abandoned the Court Casey, In it when health a woman’s endanger Casey, 505 framework. trimester rigid Id. abortion.” methods regulates But not 2791. 872-76, 112 S.Ct. omitted). (citations legit has that “the State reiterating before of the the outset interests Gonzales, imate Court recently, Most of the the health protecting pregnancy acknowl principles, these consolidated may fetus that life and the woman a rational basis has edging “[w]here 846, 112 S.Ct. Id. a child.” become undue impose act, does not and it added'that, Further, “[a]s the Court regulatory its use burden, may the State may the State procedure, any medical with Gonzales abortion. regulate power” health to further regulations enact held Gonzales 158, 127 S.Ct. at U.S. abortion.” seeking an safety of woman have lawmakers federal state 878, 112 S.Ct. 2791. Id. in areas legislation pass discretion “wide un and scientific is medical there where Mazurek, the Court later, in years Five (cita- 1610 163, 127S.Ct. certainty.” Id. brought by abortion challenge rejected 926 omitted). short,

tions In over four 406, (5th dec- F.3d Cir.2013) (Abbott 411 I) of Supreme ades (“The Court decisions establish State offered more than a conceiva has a legitimate interest in ble state of facts that provide could promoting the health and safety preg- rational basis for requiring physi nant seeking an abortion. cians to have hospital privi admission (footnote leges.”) and internal marks omit splits C. court with four federal ted); Greenville Women’s Clinic v. appellate circuits. Comm’r, S.C. Dep’t Health & Envtl. Mindful of the safety health and inter- Control, 357, (4th 317 Cir.2002) F.3d 363 recognized in decisions, ests these Wiscon- (“These requirements of having admitting sin and eleven states passed hospitals local and referral admitting-privilege laws. Planned Par- arrangements with local experts are so enthood Hollen, v.Wis. Van 738 F.3d obviously (citations patients.”) beneficial to (7th 786, Cir.2013). 791 Lawsuits initiated omitted); Women’s Health Ctr. Cty., of W. by abortion followed, providers and multi- Webster, Inc. v. 1377, (8th 871 F.2d ple circuits have ruled their constitu- Cir.1989) (‘We have no difficulty in con tionality. The deployed rationales in these cluding [the admitting-privileges law] varied, decisions have but two facts are rationally relates the state’s legitimate common throughout. First, every circuit in ensuring interest that prompt backup to rule on similar admitting-privileges laws care is available to who undergo like the one at issue here has uniformly clinics.”). outpatient upheld them. Second, no circuit except The rational basis standard is no strang- has ours anywhere ventured close to er to judiciary. Federal courts across adopting the position extreme taken the nation it regularly when consti- apply^ court that a state’s admitting-privileges tutional challenges are brought against law lacks a rational basis. See Whole state action. Familiar as may be, Women’s Cole, Health v. 563, 790 F.3d district court failed apply it, proceeding (5th Cir.2015) (plaintiffs challenging Tex- instead though the state bore the bur- as’s admitting-privileges law concede it is den of proving that its admitting-privileges supported by a basis); rational Jackson law was reasonably related to the health Women’s Currier, Org. Health 760 F.3d and safety of women seeking abortions. 448, (5th Cir.2014) (“H.B. 1390 satis- Hollen, Van (“Since 94 F.Supp.3d at 964 fies rational basis upon review based our the State contends that the admitting priv- binding precedent in Abbott.”)-, Planned ileges requirement at issue is reasonably Ariz., Parenthood Humble, Inc. v. directed to the health of women seeking Cir.2014) (“We assume abortions, it has the burden of demonstrat- without deciding that the Arizona law link.”) (citations ing omitted). passes review.”); rational-basis II, Abbott 748 F.3d at 595 (“Applying That’s exactly the rational backwards. Under ra- basis test correctly, we have tional review, to conclude basis presume courts must that the State acted within its prerogative the law in question is valid up- regulate the medical profession by hold it heed- so long as the law is rationally ing patient-centered these concerns related to a legitimate state City interest. requiring abortion practitioners to obtain Cleburne v. Ctr., Cleburne Living admitting privileges at a nearby hospi- 87 L.Ed.2d tal.”); Planned (1985). Greater Since Supreme Court has Tex. Surgical Health Abbott, Servs. v. 734 repeatedly recognized the long- state’s

927 above, to that the answer the 'health demonstrated protecting standing interest question the next So yes. is question safety pregnant of and pro of means state’s “we is whether-the ask juncture, at this chosen privileges) (admitting regulation moting its admitting-privi- the that presume must legitimate to the constitutional, reasonably and related is requirement leges safe (patient already is established requirement interest long the it so uphold then the yes, also answer is legitimate If ty). that to Wisconsin’s related rationally review, rational basis Rollen, at 800 satisfies regulation F.3d 738 Van interests.” That the contro it. uphold and we must part J., concurring in (Manion, alter not omitted). does abortion party implicates (citations versy judgment) in the Su “[njothing analysis bears because restriction an abortion challenging jurisprudence de government’s Court’s proving preme of the burden Mazurek, attributes U.S. the essential 520 from See viates irrational. action test, vital affirms 505 which Casey, (citing basis 971, 1865 rational 117 S.Ct. 2791). self-government.” prove To democratic 884, principle U.S. II, on irrational, is F.3d at 594.2 “the burden 748 Abbott act legislative arrange- attacking legislative the one Wis- Admitting privileges further D. basis every conceivable negate ment interest legitimate state consin’s Doe, Heller v. it.” support might which safety. 2637, 125 312, 320, S.Ct. 113 U.S. 509 omitted). (citation (1993) 257 L.Ed.2d are, in the words of Admitting privileges “the govern- because a tall is order This Circuit, “obviously beneficial.” Fourth its rationality of may defend ment Clinic, F.3d at 317 Women’s Greenville it can muster.” any ground beneficial, action omitted). (citation So 363 Chic., Bd. Educ. v. Inc. Props., RJB Federa- Abortion fact, of Cir.2006) (citation the National that (7th 1005, 1010 468 F.3d only recent- until them recommended omitted). marks and internal expert, Dr. James trial, At Wisconsin’s ly. in the De- Anderson, Professor Clinical ra- under for courts Thus, inquiry Population Practice & Family ques- partment this with starts basis review tional Univer- Virginia Commonwealth Health reasonably conceivable “any there tion: is publi- Medicine, referenced sity School a rational provide could facts that Federa- Abortion National cation F.C.C. See regulation? the state basis” Your Abortion? Having an tion entitled Commc’ns, Inc., Beach (2000), states which Care to Good 211 Guide L.Ed.2d 313, 113 S.Ct. the doc- emergency, the case “[i]n As I, at 411. (1993); Abbott they must prevail, view). plaintiffs to For this case from to wrest its efforts In never complications post-abortion review, prove that as- the court basis of rational ambit Wisconsin, admitting privi- occur weight studies to numerous signs great Heller, See safety. impact on no leges have complications 'contend reports which ("[T]he bur- S.Ct. U.S. at those rarely after occur legislative attacking the one den is on frequent than more are not which do occur ba- every negate conceivable arrangement to surgeries. But this outpatient types of (citation it.”) might support weigh sis do not because courts immaterial is However, omitted). that is marks re- internal they apply rational basis evidence when record, plain- because possible on City Coatings Ass’n v. Paint & Nat'l view. See ex- court-appointed Cir.1995) expert and tiffs’ own Chic., 45 F.3d privileges are pert testified evi- a role (recalling that there "never safer. they make because beneficial re- basis rational dentiary under proceedings” tor should be to able admit patients a members of their guild to become ineligi- (no nearby hospital more than minutes perform ble to abortions. away).” 237-40; Dkt. 244 at Dkt. 126 II Abbott also supports this conclusion. ¶¶ 6-7. There, “[tjhere the court observed that are Indeed, the community medical has long four main benefits supporting require-

been opinion of the that admitting privi- ment that operating surgeons hold local leges a provide real benefit to the health hospital admitting (a) and staff privileges: and safety of pregnant seeking women provides it a thorough more evaluation In abortion. the American College physician mechanism of competency which of Surgeons a patient- issued statement on better protects (b) patient safety; it ac- safety principles that joined by was knowledges and enables the importance of American Medical Association and the (c) continuity care; of it enhances inter- College American of Gy- Obstetricians and physician communication and optimizes pa- necologists. They listed several “core tient information transfer complication principles,” the fourth of provided which (d) management; and supports the ethi- that: “[pjhysicians performing office-based cal duty of care for the physician operating surgery must have admitting privileges at prevent patient abandonment.” Abbott a nearby hospital, a agreement transfer II, 748 F.3d Here, at 592. parties with physician another who has admitting have consolidated these categories four of at a privileges nearby hospital, or maintain benefits into three. The trial record con- an emergency agreement transfer with a tains evidence that admitting privileges nearby hospital.”3 rationally are legitimate related to a

Perplexingly, case, in this the AMA interest they promote because the health ACOG have joint filed a and safety amicus brief argu- pregnant seeking ing that Wisconsin’s admitting-privileges Therefore, abortions Wisconsin.4 at the law is unconstitutional. Yet first their step test, brief Gonzales this re- makes no mention of quirement their subject is statement rational basis re- sudden, or their yet convenient, view. I address disavowal each benefit in turn. of one of their principles” “core related to i Continuity care patient safety. It appears from the trial testimony plaintiff-doctors have sim- Continuity of is care beneficial abor- ply decided that admitting privileges because it reduces the “risk only desirable they insofar as do of injury cause caused miscommunication and 3. See College American Surgeons, State- eluded immediate effective date after Safety ment on Principles Patient signing clearly was intended to close the clin- Office- Surgery based Utilizing Moderate legislative ics. purpose Sedation/An- But the was not to algesia, Deep Sedation!Analgesia, or General immediately close legislature the clinics. The Anesthesia, Bulletin College American approved the statutes several weeks before Surgeons, Vol. (Apr.2004), No. 4 avail- governor signed legislation. There is able http://www.facs.org/fellows_info/ no apparent evidence that their failure des- (last statements/st-46.html 2015). visited Nov. ignate specific effective date anything simple oversight. than prelimi- nary injunction, concurred, with I 4. The district presupposed court quickly that the cured problem. lack Significantly, required other, preliminary injunction delay and the dangerous more procedures showed connection with trial all enabled only purpose of Wisconsin's law was Planned Parenthood’s abortion doctors to ac- safe, legal restrict abortions. It quire also con- admitting privileges. (Dr. Anderson); Dkt. 131 Id. care. transferred when misdiagnosis ¶ (Dr. Thorp). ¶ 22 & Dkt. to another.” provider health care from one Indeed, even at 595. II, 748 F.3d profes- Abbott these medical of opinions Kathy Dr. witness expert and shared, too, Fifth plaintiff by the Cir- are sionals that agreed Planned “[requiring that King cuit, of concluded necessary ingredient is a admitting privi- continuity of care to have providers abortion 155. at continuity Dkt. of patients. treating promote also leges when would inju- cases, risk of reducing the in all care by the shared opinion King’s Dr. and misdi- miscommunication ry caused Bulun, Serdar Dr. expert, court-appointed from is transferred a when agnosis and of Obstetrics Department Chair of Ab- to another.” provider health care one University’s at Northwestern Gynecology II, at 595. bott Medicine, also who Feinberg School com- physician “physician that opined Credentialing ii important most of the is one munication process en- “credentialing Similarly, aof handling optimal requirements the risk reduces regulation tailed procedure,” from arising complication subjected will be patients abortion that ideally should “communication and that In Id. treatment.” inadequate woefully perform- physician place between take credentialing words, advances at physician and the ing the health promoting patient interest state’s compli- handling will be who hospital, performing that ensure by helping Dr. Bulun 4.5 at Dkt. 7th Cir. cation.” Geoffrey R. Dr. qualified. that further testified American of the Associa- president Keyes, of the 90% “probably benefits would Ambulatory Sur- for Accreditation trans- while and that time,” at Diet. “credentialing Facilities, opined gery “in an ide- important, agreements were fer and important neces- serve privileging and [admitting privileges both al world contemporary medical sary functions Id. exist.” should agreements] transfer ensure primarily practice, 61. provid- care quality high safe receive skill, training and appropriate with ers including Likewise, experts, Wisconsin’s ¶ 15. Dkt. 127 experience.” (a Thorp Dr. John Dr. Anderson Dr. testimony of to the at the In addition teaches ob-gyn board-certified 232-33, Dr. Bulun Anderson, Dkt. 244 School North Carolina’s University of having physicians a benefit admitting priv- opined Health), opined Public is “to ensure admitting privileges continuity of promoting aided ileges treated, undergo being wait in line before correctly analysis, court standing 5. In its to determine preliminary or is examinations has had a woman who recognizes that problem. If admit- want does not source of have an nature and expecting to contrast, the plaintiff in a lawsuit place, exposed as were in ting privileges her name constitutionality law bypass challenging the could physician operating woman's pri- The same practices. regulating abortion secure delay promptly embarrassing any if a be encountered would vacy concerns upon treatment admission the woman’s in- from an abortion-related suffering woman physician-to-physi- way, the this In arrival. emergency room. go the nearest jury had by the admit- facilitated cian communication give name and her have to would There she help pro- requirement ting-privileges (or injury else lie her disclose the cause promote more privacy and the woman's tect it, have been it must suggesting that about treatment. remedial efficient may have to also miscarriage). She natural practicing physicians are appropriately State Assembly had a “rational basis to qualified, competent trained and prac- act” in passing admitting-privileges specific tice ain area of medicine or sur- law in to protect order the health and gery.” 7th Cir. 44 at Dkt. The Fifth safety pregnant women who choose Circuit agreed, stating that “require- abortion in Gonzales, Wisconsin. See physicians ment that performing abortions 127 S.Ct. 1610. Given must have “Regulations designed to foster the health helps to ensure that credentialing physi- of a woman seeking an abortion are valid if beyond cians initial licensing periodic and they do not burden,” an constitute undue I, license renewal occurs.” Abbott 784 Casey, 877-78, 505 U.S. at 112 S.Ct. F.3d at 411. the question next is whether this law has the effect of an imposing undue burden on Hi. Accountability peer and review the ability of women to choose abortion. Finally, in addition Wisconsin’s ex perts Bulun, plaintiffs’ and Dr. Casey own The expert plurality first described the witness, Dr. Douglas Laube, W. a Profes “undue burden” test as follows: finding “A sor of Obstetrics and Gynecology at the of an undue burden is a shorthand for the University of School, Wisconsin Medical conclusion that a regulation has the past and president of the American Col purpose or effect of placing a substantial lege of Obstetricians and Gynecologists, path obstacle the aof woman seeking an testified that accountability peer and re abortion of a nonviable fetus.” Id view was a benefit health pro women’s that, 2791. We said applica- by moted Wisconsin’s admitting-privileges tion, “a court’s proper focus must be on requirement. Dkt. 244 at 65-66.6 practical the impact the challenged reg- ulation and whether it will have likely Ill effect of preventing a significant number

A. admitting-privileges Wisconsin’s of women for whom regulation is rele- requirement impose does not an vant obtaining from Karlin, abortions.” Undue Burden on a woman’s abil- 188 F.3d at 481. Supreme The Court then ity to choose abortion. simplified Casey’s description of an undue The record evidence I have cited estab- burden by collapsing purpose inquiry beyond lishes a doubt that the Wisconsin into the Gonzales, effects test. See only 6. While the appeal on issue is the man- gestational ment of stage pregnan- date for admitting privileges, very cy. another might detection of give twins also important purpose of Wisconsin’s law was the woman second thoughts. regardless But requirement for pointed ultrasounds. IAs legislators whether certain hoped an ul- concurrence, my out in earlier receiving an trasound would change cause the woman to before mind, ultrasound an abortion benefits women her the ultrasound indisputably pro- starters, ways. in several For important ultrasound vides facilitating information would confirm the fact that pregnant. she decision, fully more informed which cannot heartbeat, Once she saw or heard the she anything be seen as abut benefit to the wom- would assured (even that there is not a mistaken an if the might disapprove abortionist pregnancy spontaneous test or a miscarriage decision). her The obvious flowing benefits that was not earlier detected. Thus she requirement the ultrasound show that paying avoid several hundred dollars law supported by Wisconsin's a number of Also, unnecessary operation. the ultra- rational bases—all centered on the health and help sound would reduce uncertainty welfare of the woman—in addition to those any potential disclose complications, requirement advanced such enabling as a more privileges. accurate assess- potential closure of AMS’s Currier, 1. Effect 1610; 158, 127 S.Ct. analysis Burden on Undue J., dissenting). (Garza, 4n. at 460 analysis. of our step second That is Wisconsin, oper- Planned Parenthood In court, we appellate intermediate Milwaukee, As Madi- clinics ates abortion established standards apply are bound providers son, Its abortion Appleton. this case When Court. Supreme by the admit- have secured of those clinics at each however, court us, before was-first Ser- Affiliated Medical ting privileges. to the state the burden shifted majority (AMS) clinic in one abortion operates vices of its admit- necessity the medical justify Christensen Drs. Milwaukee. Dennis law and characterized ting-privileges are, pres- staff AMS Smith Bernard district for the standard burden undue in Wiscon- ent, providers only follows: as on remand apply court weeks after 18.6 sin to conduct abortion-relat- “late-term deal with (commonly known The cases LMP justified abortions”). admit- sought to be has secured statutes Neither ed only evi- require plain- not the Consequently, grounds ting privileges. medical seen) closure, (here we lacking as risks that AMS dence tiffs contend legitimate occurs, seeking grounds abor- that, women that the medical if impose- undue statute face three also that Wisconsin will but tions in seeking (1) abor- wait on women significantly increased “undue burden” burdens: grounds, (2) Chicago or to times; required feebler travel tions. The burden, (3) to slight, option if locations; inpatient even no likelier in dispropor- the sense abortions seeking in “undue” late-term for women in arguments gratuitous. these or I tionate address Wisconsin. turn. (citations Hollen, at 798 F.3d 738 Van

omitted). I Although concurred injunc- preliminary times affirming a. judgment Wait grace no provided the law tion because testi- Parenthood King of Planned Dr. ad- acquire for abortion period close, it would that, if AMS were fied requiring law before the mitting privileges Planned capacity of “overwhelm I effect, then —nor do I did not took them accom- clinics to of Wisconsin “undue the home-brewed today —endorse incurred 2,500 modate” court now dou- burden” standard at 243 Dkt. in 2013. at AMS abortions stated, no it finds Simply bles-down on. testimony, the crediting this In 147-48. Gonzales, any other case Casey, or basis erroneously characterized court district it created. See which other than law requiring as burden standard the undue Lakey, 769 F.3d Health v. Women’s Whole in Wisconsin.” to abortion services “access (“Under Cir.2014) (5th prece- our 285, 297 Hollen, F.Supp.3d 94 Van authority by which dent, no we have jurisprudence Court’s abortion Supreme scrutiny un- into strict basis turn rational guarantee. no intrastate carries inqui- burden the undue guise of der the regulations pre-viability all “Although proof, reversing burdens By ry.”). ability to obtain Mazurek, a woman’s burden rejects implicitly the court also [in degree, Court to some 1865, abortion 971, 520 U.S. at law is an abortion explained that Casey challenging an ] party requires merely be- unconstitutional not rendered the burden bear restriction abortion difficult it to make more operates cause it II, F.3d at 597. Abbott 748 proof. See 932 expensive procure more an abortion.” other clinics within a reasonable distance

Karlin, (citing 188 F.3d 479 Casey, See, 505 remain open for e.g., business. Abbott 874, 2791). U.S. at 112 Casey reject- II, (clinic S.Ct. 748 F.3d at 598 closure was not ed the notion that the right is the undue burden when another clinic was ac- right “to decide whether to have an abor- miles); cessible within 150 Women’s Med. tion without interference from the Baird, (6th State.” Corp. 438 F.3d 605 Prof. Casey, (same Cir.2006) 505 U.S. S.Ct. 2791 miles); within 45 to 55 (quoting Planned Parenthood Cent. Mo. Greenville Women’s v. Bryant, Clinic 52, 61, v. Danforth, Cir.2000) (same S.Ct. within (1976)) (internal miles). L.Ed.2d 788 marks omitted). Rather, right rec- AMS is one of four abortion clinics in ognized by Roe “right is the to be free Wisconsin and two Milwaukee. Even if governmental unwarranted intrusion” closed, patrons seeking pre-18.6 week (cita- in making the abortion decision. Id. LMP abortions (approximately 98% of omitted). tion and internal marks Ulti- women seeking Wisconsin) mately, Casey summarizes the undue bur- (four would need to travel a mere 1.3 miles den standard follows: automobile) minutes to reach Planned Only regulation where state imposes an Parenthood’s Milwaukee clinic instead.7 undue burden ability on woman’s The plaintiffs argue that the state cre make this does the power decision ates an undue burden under Casey when a State reach into the heart of the liberty regulation designed protect the health protected by the Due Process Clause. and safety of pregnant women decreases (cita- Id. U.S. at S.Ct. 2791 the availability of qualified abortionists. omitted). tions The implications of argument this are as The Supreme has Court held that the tounding. end, Taken its logical to this constitutional right to privacy extends to a argument would require state to as right woman’s abortion; to choose it has sume some duty affirmative pro both to held, or even implied, right that this is vide abortion services and to so in a do in sure, intrastate nature. To be there is- manner that is convenient for consumers no right constitutional to obtain an abor- of abortion and regard with no for the tion at the clinic of one’s choice and at quality professionals of healthcare that a time convenience, of one’s just as one’s state’s naturally occurring marketplace right to free speech apply does not in all provides. The state bears no such obli places a protester might desire to com- gation Karlin, duty. plain. In way the same that a state may all (“Although pre-viability regulations reasonably regulate speech if it burden leaves a ability woman’s to obtain an open adequate alternative forums for ex- abortion to degree, some the Court ex pression, increased wait times one plained clinic Casey [in ] that abortion law is do not constitute an undue burden when not rendered merely unconstitutional be- 7. Statistics approximately indicate that LMP, 98% after abortions 18.6 weeks but before 20 seeking LMP, women abortions in post-20 Milwaukee weeks week number ac- impacted will not be if AMS In closes. counts for less than of all 2% abortions-in 6,927 there reported were abortions in Wis- seeking Women Wisconsin. the latest term ¶ consin. Dkt. year, 200 9. That permitted same AMS by abortions law have access to post-20 week LMP abortions. other clinics in Chicago that are well within a Dkt. 243 at Although 29-30. burden, these statistics held distance not to undue as I do not account for the women who incurred discuss below. inaction is not state boundaries. State make it more difficult operates cause an abor- procure action. expensive or more omitted).

tion.”) (citation short, no basis for us simply In there is has limited Supreme Court While disrupt the market for abortionists abortions, it has ability regulate state’s interjecting ourselves: their abilities to a com- to establish required never admitting privileges, like qualify “[t]he them. provide economy order mand private hospi- independent decisions may disfavor abortionists the market That tals!,] of state place have no our review concern, preroga- but the the state’s is not Currier, under the action Constitution.” Like of that service. purveyors tive (Garza, J., dissenting) at 460 760 F.3d going that wishes to be any enterprise omitted). (citation and footnote abortions concern, that wish to sell entities able practitioners must hire availability Required travel and b. on the necessary credentials secure late-term professional reputations of their basis the border of Consumers who live near of skilled care.8 provision their documented at the closest shop two states tend to instance, credentials include these In this destination, they re- regardless of whether admitting privileges. this rou- Disregarding in that state. side problems plaintiffs’ to the The solution that re- assumption, plaintiffs argue tine doctors, they qualified find more is that to travel seeking abortion quiring women that we strike the state relax —or not that abor- state to obtain late-term outside the tak- precautions down as unconstitutional — Surpris- an undue tions creates burden. the health and protect the state to en some basis ingly, argument finds who have cho- pregnant safety Fifth recent decision Jack- Circuit’s Casey, pregnancies. their See to abort sen v. Cur- Organization Health son Women’s (rejecting 112 S.Ct. 2791 505 U.S. rier, Cir.2014), 760 F.3d right is the notion that the abortion “the for- proper the court held that where have an abor- whether to right “to decide analysis fo- mulation of the undue burden State”). interference from tion without regu- the effects within the solely cuses doubt, labors any Wisconsin Lest there However, precedent our lating state.” receivership ob- compulsory under no un- “the disagrees with Jackson: squarely market fails to it to intervene if the ligates ... applied must be standard within its due-burden qualified abortionists provide credit, However, to their hospitals that from abortion.” to a few 8. The court refers at the other treated a certain num- doctors require doctors to have the Planned Parenthood admit- ap- there in order to obtain ber of have abortion clinics in Wisconsin three might give hospitals ting privileges. Other competence sufficient parently demonstrated admitting privileges doctors who demon- deliver- procedures, perhaps even in medical particular procedure competence in the strate babies, ing qualify for and to obtain live course, perform. Of doctor seeks to required admitting privileges. For statutorily delivering live hospital requires considering that credential years previous two would not babies worth distinguishes them from AMS is admitting privileges be- give the AMS doctors otherwise, Although implies noting. court observes, cause, "delivering live as the court say that the Planned it is safe do.” And what abortion doctors babies is not depend on the "rare” abor- will not doctors discussing the noted when as the court also vol- complication a sufficient to obtain undergo very death rate for women low admit- hospital to maintain their ume of work abortions, long-term study cited measured ting privileges. resulting death mortality rates "rather than whole, plaintiffs’ to the nation as a rather than one of the applications admitting for state at a time.” A Choice-E. privileges Woman’s hospitals. Wisconsin Counsel Newman, Side Women’s Clinic v. 305 F.3d any was unable to confirm whether (7th Cir.2002). 684, 688 servicing four abortion clinics Wis- possessed admitting privileges, consin nor Turning towards distance rather than any pending did she know the status of mansion, governor’s Chicago towards applications by her them.9 clients obtain approximately is 93 miles from Milwau- forty kee—or a one hour and minute drive. i. Planned Parenthood’s to ob- efforts recently Fifth held that Tex- Circuit tain admitting privileges as’s law did not im- admitting-privileges We know more now. At least six pose right an undue burden on a woman’s Planned Parenthood abortion doctors—Dr. to choose abortion because “travel of less Pfleger, Kathy King, pseud- Susan Dr. than 150 women is not an miles some PI, P2, P3, II, onymous plaintiffs and P5—all Casey.” undue burden under Abbott (citation omitted). admitting privileges whom did 748 F.3d at 598 Before II, filed, when this lawsuit similarly Abbott the Sixth Circuit con- have subse- Hollen, quently obtained them. cluded that there was no undue See Van burden F.Supp.3d Casey under where one of two 988-89. These individuals Ohio clinics forth put sufficient efforts to obtain admit- to conduct 18-24 week abortions was successful, ting privileges prov- closed due to lack of a transfer and were agreement ing obtaining hospital, admitting privileges with a local even when the re- obstacle, not an maining clinic was located over 200 insurmountable even for miles Baird, away. abortion doctors. See 438 F.3d at 605. authorities,

Consistent with these it is well ii. admitting AMS’s to obtain efforts scope within the of Newman to conclude trip that the 93-mile from Milwaukee to

Chicago to obtain abortion does not The same cannot be said of Drs. Chris- impose an undue burden on a woman’s tensen and Smith. Milwaukee over has ability to choose 305 F.3d at abortion. dozen hospitals,10yet only two Dr. Smith attempted apply for admitting privileges (and at one manager had the AMS

2. Even if the undue burden standard another). inquiry send an email to Dr. applied availability to the market (who Christensen had doctors, of abortion abor- AMS for decades entering before semi-retire- tionists made minimal efforts to ment) attempted apply admitting privileges. obtain privileges at hospitals, two but did not When this case was attempt satisfy before us on the to their informational re- injunction, preliminary plaintiffs’ I asked quests. court, In the words of the district argument counsel at oral about the status these “efforts” demonstrate both doc- course, that, recognize prelimi- 9. Of I may likely injunc- at the have been less to affirm the nary injunction stage, it was in counsel's tion entered the district court. clients’ best interests for her to be non-re- sponsive my question because if she had 10. See Discover Milwaukee-Metro Milwaukee already informed us that some of her clients Hospitals, http://www.discovermilwaukee. possessed admitting privileges, some of the com/healthcare-and-fitness/metro-milwaukee- likely open clinics would have remained even (last 12, 2015). hospitals/ visited Nov. effect, light of the law’s immediate and we who have decided to women pregnant opportunities” to exhaust all “fail[ed] tors because does not Id. incur an admitting privileges. to obtain Moreover, I Casey, under impose an undue burden agree I with assessment. savvy enough to were both dissent. while initiating purpose for the counsel obtain lawsuit, to assist neither did so of the acquisition

their Dkt. 211 seeks to invalidate.

this lawsuit (Dr. (Dr. Smith); 226 at 45 Dkt.

at 48

Christensen). argu- plaintiffs’ Despite to- contrary, indifference to the

ments providers the law abortion

wards potential clo- clinic’s an abortion

results undue burden. not create an

sure does CARPENTERS CENTRAL ILLINOIS IV TRUST HEALTH AND WELFARE marks today’s decision regret I Plaintiffs-Appellees, FUND, al., et continued chapter our circuit’s latest Court’s Supreme misapplication majority By a jurisprudence. CARPENTRY, LLC, CON-TECH a measure one, court has eliminated Defendant-Appellant. en- elected officials

that Wisconsin’s safety of the health and protect acted to No. 15-1269. to incur an abortion. who choose ad- that Wisconsin’s question is no There Appeals, United States Court furthers requirement mitting-privileges Circuit. Seventh protecting rational basis legitimate, 6, 2015. Argued Nov. Among oth- health welfare. women’s benefits, promotes requirement er 24, 2015. Decided Nov. ensure helps care and continuity of credentialed properly are that abortionists in tandem It also qualified. works requirement

with Wisconsin’s ultrasound decision-making on informed

to facilitate alike. of doctor and

the parts the re- any there indication

Nor is obsta- pose a

quirement would substantial ability access

cle women’s Planned Par- in their area. As

providers for ad- applications

enthood’s successful demonstrate, hospi-

mitting privileges willing perfectly

tals Wisconsin qualified

grant in their perform

physicians admitting- Because Wisconsin’s

state. the rational requirement has safety promoting health

basis

Case Details

Case Name: Planned Parenthood of Wiscons v. Brad D. Schimel

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 23, 2015

Citation: 806 F.3d 908

Docket Number: 15-1736

Court Abbreviation: 7th Cir.