Planned Parenthood of Wiscons v. Brad D. Schimel , 806 F.3d 908 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1736
PLANNED PARENTHOOD OF WISCONSIN, INC., et al.,
Plaintiffs-Appellees,
v.
BRAD D. SCHIMEL, Attorney General of Wisconsin, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13-cv-00465-wmc — William M. Conley, Chief Judge.
____________________
ARGUED OCTOBER 1, 2015 — DECIDED NOVEMBER 23, 2015
____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. On July 5, 2013, the Governor of
Wisconsin signed into law a statute that the Wisconsin legis-
lature had passed the previous month. So far as relates to
this appeal the statute prohibits a doctor, under threat of
heavy penalties if he defies the prohibition, from performing
an abortion (and in Wisconsin only doctors are allowed to
perform abortions, Wis. Stat. § 940.15(5)) unless he has ad-
2 No. 15-1736
mitting privileges at a hospital no more than 30 miles from
the clinic in which the abortion is performed. Wis. Stat.
§ 253.095(2).
A doctor granted admitting privileges by a hospital be-
comes a member of the hospital’s staff and is authorized to
admit patients to that hospital and to treat them there; that is
the meaning of “admitting privileges.” Of course any doctor
(in fact any person) can bring a patient to an emergency
room to be treated by the doctors employed there. A hospital
that has an emergency room is obliged to admit and to treat
a patient requiring emergency care even if the patient is un-
insured. 42 U.S.C. § 1395dd(b)(1). Moreover, all Wisconsin
abortion clinics are required by law (see Wis. Admin. Code
Med. § 11.04(1)(g)) to have transfer agreements with local
hospitals to streamline the process of transferring the patient
from the abortion clinic to a nearby hospital, which could be
important if the patient would be better served elsewhere in
a hospital than the emergency room—though in that event
the emergency room doctors would send her to the part of
the hospital in which she could best be served.
Planned Parenthood of Wisconsin and Milwaukee Wom-
en’s Medical Services (also known as Affiliated Medical Ser-
vices, commonly referred to as AMS)—which operate the
only four abortion clinics in Wisconsin—joined by two doc-
tors employed by Planned Parenthood, filed suit on the day
the governor signed the statute into law. The plaintiffs chal-
lenged the statute’s constitutionality under 42 U.S.C. § 1983,
which provides a tort remedy for violations of federal law by
state officials or other state employees. The plaintiffs sought
and obtained first a temporary restraining order and then a
preliminary injunction against enforcement of the statute
No. 15-1736 3
(not the entire statute, just the provision regarding admitting
privileges for abortion doctors—but for simplicity we’ll gen-
erally call that provision “the statute”).
The defendants (the Wisconsin attorney general, Wiscon-
sin district attorneys, the Wisconsin Secretary of the De-
partment of Safety and Professional Services, and members
of the state’s Medical Examining Board) appealed from the
grant of the preliminary injunction. 28 U.S.C. § 1292(a)(1).
We affirmed the grant in Planned Parenthood of Wisconsin, Inc.
v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). That cleared the
way for the district judge to conduct a full trial, which he
did. The trial culminated in his granting a permanent injunc-
tion against enforcement of the statute, which was the relief
sought by the plaintiffs. The defendants (essentially, the
state) have again appealed, arguing that the statute protects
the health of women who experience complications from an
abortion. The plaintiffs disagree, arguing that if allowed to
go into effect the statute would not protect the health of
women but would simply make it more difficult for them to
obtain abortions, period, in violation of constitutional rights
recognized by the U.S. Supreme Court.
There might appear to be a question about standing to
sue, since the principal victims of the statute are women de-
siring abortions and none of them is a plaintiff. But we ex-
plained in our opinion upholding the preliminary injunction
that the plaintiffs have standing. The cases are legion that
allow an abortion provider, such as Planned Parenthood of
Wisconsin or AMS, to sue to enjoin as violations of federal
law (hence litigable under 42 U.S.C. § 1983) state laws that
restrict abortion. These cases emphasize not the harm to the
abortion clinic of making abortions very difficult to obtain
4 No. 15-1736
legally, though that might be an alternative ground for rec-
ognizing a clinic’s standing, but rather “the confidential na-
ture of the physician-patient relationship and the difficulty
for patients of directly vindicating their rights without com-
promising their privacy,” as a result of which “the Supreme
Court has entertained both broad facial challenges and pre-
enforcement as-applied challenges to abortion laws brought
by physicians on behalf of their patients.” Isaacson v. Horne,
716 F.3d 1213, 1221 (9th Cir. 2013); see also Richard H. Fal-
lon, Jr., “As-Applied and Facial Challenges and Third-Party
Standing,” 113 Harv. L. Rev. 1321, 1359–61 (2000).
A related consideration, important in this case as we’ll
see, is the heterogeneity of the class that is likely to be affect-
ed by the Wisconsin statute. If one of the abortion clinics in
the state closes, placing increased demand on the others,
some women wanting an abortion will experience delay in
obtaining, or may even be unable to obtain, an abortion, yet
not realize that the new law is likely to have been the cause.
Those women would be unlikely to sue. Other women might
be able to find an abortion doctor who had admitting privi-
leges at a nearby hospital, yet still incur costs and delay be-
cause the law had reduced the number of doctors who are
allowed to perform abortions. Suits to recover the costs, in-
cluding some quantification of the cost of delay, would be
awkward. A suit by clinics and doctors seeking injunctive
relief is more feasible and if successful gives the women
what they want. If the clinics and doctors win, the patients
win.
And finally the Supreme Court held in Doe v. Bolton, 410
U.S. 179, 188 (1973) (the companion case to Roe v. Wade, 410
U.S. 113 (1973)), that abortion doctors (remember that the
No. 15-1736 5
two individual plaintiffs in this case are doctors employed
by abortion clinics) have first-party standing to challenge
laws limiting abortion when, as in Doe and the present case
as well, penalties for violation of the laws are visited on the
doctors. Wis. Stat. §§ 253.095(3), (4); see Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 903–04, 909
(1992) (plurality opinion); Planned Parenthood of Central Mis-
souri v. Danforth, 428 U.S. 52, 62 (1976); Karlin v. Foust, 188
F.3d 446, 456 n. 5 (7th Cir. 1999); Planned Parenthood of Wis-
consin v. Doyle, 162 F.3d 463, 465 (7th Cir. 1998).
Although signed into law on a Friday (July 5, 2013), Wis-
consin’s statute required compliance—the possession, by
every doctor who performs abortions, of admitting privileg-
es at a hospital within a 30-mile radius of each clinic at
which the doctor performs abortions—by the following
Sunday (July 7, 2013). See Wis. Stat. §§ 253.095(2), 991.11.
There was no way an abortion doctor, or any other type of
doctor for that matter, could obtain admitting privileges so
quickly, and there wouldn’t have been a way even if the two
days hadn’t been weekend days. As the district court found,
it takes a minimum of one to three months to obtain admit-
ting privileges and often much longer. It took ten months for
one of the individual plaintiffs to obtain admitting privileg-
es. It took eight months for the other one to obtain admitting
privileges at one hospital and nine months for her to obtain
them at another hospital. Moreover, hospitals are permitted
rather than required to grant such privileges, and some may
be reluctant to grant admitting privileges to abortion doctors
because there is great hostility to abortion in Wisconsin,
though as we’ll see hospitals have now granted such privi-
leges to a number of the state’s abortion doctors.
6 No. 15-1736
States that have passed laws similar to Wisconsin’s have
allowed much longer implementation time than a weekend—
for example, Mississippi allowed 76 days from statutory ap-
proval date to effective date, Alabama 83 days, and Texas
103 days. 2012 Miss. Gen. Laws 331 (H.B. 1390), enjoined in
Jackson Women’s Health Organization v. Currier, 760 F.3d 448
(5th Cir. 2014); 2013 Ala. Legis. Serv. 2013-79 (H.B. 57), en-
joined in Planned Parenthood Southeast, Inc. v. Bentley, 951 F.
Supp. 2d 1280 (M.D. Ala. 2013); 2013 Tex. Sess. Law Serv.
2nd Called Sess. Ch. 1 (H.B. 2), upheld in Planned Parenthood
of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583
(5th Cir. 2014). True, the statute had been passed by the Wis-
consin legislature weeks rather than days before it took ef-
fect, but weeks aren’t enough time in which to get admitting
privileges, and until the governor signed the law there could
be no certainty that it would become law; until then the
abortion doctors would not know whether they’d be re-
quired to obtain such privileges.
As of July 7 none of the doctors at either the AMS clinic
(in Milwaukee) or Planned Parenthood’s Appleton clinic had
admitting privileges at a hospital within the required 30-
mile distance from the clinic, and neither did two of the doc-
tors at Planned Parenthood’s Milwaukee clinic. On the date
of oral argument of the appeal from the grant of the prelimi-
nary injunction—almost five months after the law would
have taken effect had it not been for that injunction and the
temporary restraining order that preceded it—the applica-
tion of one of the doctors for admitting privileges had been
denied and none of the applications of the others had been
granted. Had enforcement of the statute not been stayed,
two of the state’s four abortion clinics—the one in Appleton
(the only one north of Milwaukee) and one of the Milwaukee
No. 15-1736 7
clinics—would have had to shut down because none of their
doctors had admitting privileges at a hospital within the
prescribed radius; and the capacity of a third clinic to per-
form abortions would have shrunk in half.
The state points out that abortion doctors have now had
more than two years since the statute was enacted in which
to obtain admitting privileges. But the legislature’s intention
to impose the two-day deadline, the effect of which would
have been to force half the Wisconsin abortion clinics to
close for months, is difficult to explain save as a method of
preventing abortions that women have a constitutional right
to obtain. The state tells us that “there is no evidence the
[Wisconsin] Legislature knew AMS physicians would be un-
able to comply with the Act.” That insults the legislators’ in-
telligence. How could they have thought that an abortion
doctor, or any doctor for that matter, could obtain admitting
privileges in so short a time as allowed? The clinics would
have had to close, and months would have passed before
they could reopen.
The fixing of such a short deadline for obtaining admit-
ting privileges, a deadline likely to deny many women the
right to an abortion for a period of months while the abor-
tion doctors tried to obtain those privileges, could be justi-
fied consistently with the Supreme Court’s abortion juris-
prudence only if there were reason to believe that the health
of women who have abortions is endangered if their abor-
tion doctors don’t have admitting privileges. The district
court correctly found that there is no reason to believe that.
A woman who experiences complications from an abortion
(either while still at the clinic where the abortion was per-
formed or at home afterward) will go to the nearest hospital,
8 No. 15-1736
which will treat her regardless of whether her abortion doc-
tor has admitting privileges. As pointed out in a brief filed
by the American College of Obstetricians and Gynecologists,
the American Medical Association, and the Wisconsin Medi-
cal Society, “it is accepted medical practice for hospital-
based physicians to take over the care of a patient and
whether the abortion provider has admitting privileges has
no impact on the course of the patient’s treatment.” As Dr.
Serdar Bulun, the expert witness appointed in this case by
the district judge under Fed. R. Evid. 706, testified, the most
important factor would not be admitting privileges, but
whether there was a transfer agreement between the clinic
and the hospital. As we’ve said, abortion doctors in Wiscon-
sin are required to have such transfer agreements. See Wis.
Admin. Code Med. § 11.04(1)(g). The treating doctor at the
hospital probably would want to consult with the doctor
who had performed the abortion, but for such a consultation
the abortion doctor would not need admitting privileges.
As it happens, complications from an abortion are both
rare and rarely dangerous—a fact that further attenuates the
need for abortion doctors to have admitting privileges. Two
studies cited in the amicus curiae brief filed by the American
College of Obstetricians and Gynecologists et al. and credit-
ed by the district judge—Tracy A. Weitz et al., “Safety of
Aspiration Abortion Performed by Nurse Practitioners, Cer-
tified Nurse Midwives, and Physician Assistants Under a
California Legal Waiver,” 103 Am. J. Public Health 454, 457–
58 (2013), and Kelly Cleland et al., “Significant Adverse
Events and Outcomes After Medical Abortion,” 121 Obstet-
rics & Gynecology 166, 169 (2013)—find that complications
occur in only 1 out of 112 physician-performed first-
trimester aspiration abortions (the most common type of
No. 15-1736 9
surgical abortion), and that 94 percent of those complications
are “minor.” Weitz et al., supra, at 457–58 tab. 2. For medical
abortion (abortion by pill), the rate of complications is only 1
in 153. Cleland et al., supra, at 169 tab. 2. The official Wiscon-
sin figure for 2013 is even lower: 1 complication per 404
abortions of all types. And finally only 1 in 1937 physician-
conducted aspiration abortions result in major complications
(a category which includes hospital admissions), and 1 in
1732 medical abortions require hospital admission. Weitz et
al., supra, at 456, 458–59; Cleland et al., supra, at 169 tab. 2.
These studies have found that the rate of complications is
below 1 percent; in the case of complications requiring hos-
pital admissions it is one-twentieth of 1 percent. The rate of
complications for second-trimester surgical abortions is
slightly higher—1.3 percent. Anna C. Frick et al., “Effect of
Prior Cesarean Delivery on Risk of Second-Trimester Surgi-
cal Abortion Complications,” 115 Obstetrics & Gynecology 760
(2010). In the five-year period 2009 to 2013, only 12 women
who had abortions at clinics in Wisconsin experienced com-
plications requiring transfer from clinic to hospital. Fifteen
additional women who had received abortions at a Planned
Parenthood clinic and left the clinic without apparent com-
plications later sought treatment at a hospital. The record
does not contain a comparable figure for the AMS clinic.
There is no evidence that any of these women received inad-
equate hospital care because the doctors who had performed
their abortions lacked admitting privileges.
One doctor with extensive experience in obstetrics and
gynecology told about a case in which a woman with a com-
plication from an abortion might, he thought, have avoided
a hysterectomy if her abortion doctor had called the hospital
10 No. 15-1736
or had had admitting privileges. That is the only evidence in
the record that any woman whose abortion resulted in a
medical complication has ever, anywhere in the United
States, been made worse off by being handed over by her
abortion doctor to a gynecologist, or other specialist with
relevant expertise, employed by the hospital to which she’s
taken. And the example doesn’t actually have anything to do
with admitting privileges. The abortion doctor didn’t need
admitting privileges at a hospital in order to call an ambu-
lance to take his patient to the nearest hospital, or to com-
municate with the treating doctor at the hospital—neither of
which he did. As the district judge found, in the case of abor-
tion “any benefit of admitting privileges in terms of continu-
ity of care is incrementally small.”
And as noted, Wisconsin abortion clinics—uniquely, it
appears, among outpatient providers of medical services in
Wisconsin—are required by law to adopt transfer protocols
intended to assure prompt hospitalization of any abortion
patient who experiences complications serious enough to
require hospitalization. See Wis. Admin. Code Med.
§ 11.04(1)(g).
The state presented no other evidence of complications
from abortions in Wisconsin that were not handled ade-
quately by the hospitals in the state. And no documentation
of a medical need for requiring abortion doctors to obtain
admitting privileges had been presented to the Wisconsin
legislature when it was deliberating on the bill that became
the statute challenged in this case. The only medical evi-
dence that had been submitted to the legislature had come
from a doctor representing the Wisconsin Medical Society—
and she opposed requiring that abortion doctors obtain ad-
No. 15-1736 11
mitting privileges. The only testimony presented to the legis-
lature that admitting privileges are important to continuity
of care was presented by a representative of Wisconsin Right
to Life who happens not to be a doctor. Indeed the legisla-
tive deliberations virtually ignored the provision concerning
admitting privileges, focusing instead on another provi-
sion—a requirement not challenged in this suit that a wom-
an seeking an abortion obtain an ultrasound examination of
her uterus first (if she hadn’t done so already), which might
induce her to change her mind about having an abortion.
Wis. Stat. § 253.10(3)(c)(1)(gm).
No other procedure performed outside a hospital, even
one as invasive as a surgical abortion, is required by Wiscon-
sin law to be performed by doctors who have admitting
privileges at hospitals within a specified radius of where the
procedure is performed. And that is the case even for proce-
dures performed when the patient is under general anesthe-
sia, and even though more than a quarter of all surgical op-
erations in the United States are now performed outside of
hospitals. Karen A. Cullen et al., “Ambulatory Surgery in the
United States, 2006,” Centers for Disease Control and Preven-
tion: National Health Statistics Reports No. 11, Sept. 4, 2009, p.
5, www.cdc.gov/nchs/data/nhsr/nhsr011.pdf (visited Nov.
21, 2015, as was the other website cited in this opinion). And
that is true even for such gynecological procedures as diag-
nostic dilation and curettage (D&C) (removal of tissue from
the inside of the uterus), hysteroscopy (endoscopy of the
uterus), and surgical completion of miscarriage (surgical re-
moval of fetal tissue remaining in the uterus after a miscar-
riage, which is a spontaneous abortion rather than one med-
ically induced)—procedures medically similar to abortion.
12 No. 15-1736
Dr. John Thorp, Jr., an expert witness for the defendants,
testified that abortion is more dangerous than D&C or hys-
teroscopy because there is increased blood flow during a
pregnancy. But one of the plaintiffs’ experts, Dr. Douglas
Laube, countered that a pregnant uterus responds better to
treatments to stop bleeding, making the risk of the proce-
dures roughly the same. The district judge was entitled to
credit Laube’s testimony over Thorp’s, and credit too the
studies placed in evidence that showed how rare major
complications of both hysteroscopy and second-trimester
surgical abortion are. See Morris Wortman et al., “Operative
Hysteroscopy in an Office-Based Surgical Setting: Review of
Patient Safety and Satisfaction in 414 Cases,” 20 J. Minimally
Invasive Gynecology 56 (2013); T. C. van Kerkvoorde et al.,
“Long-term Complications of Office Hysteroscopy: Analysis
of 1028 Cases,” 19 id. 494 (2012); Frick et al., supra.
Dr. Thorp acknowledged, moreover, that admitting
privileges are no more important for abortions than for other
outpatient procedures. Yet Wisconsin appears to be indiffer-
ent to complications of any other outpatient procedures,
even when they are far more likely to produce complications
than abortions are. For example, the rate of complications
resulting in hospitalization from colonoscopies done for
screening purposes is four times the rate of complications
requiring hospitalization from first-trimester abortions. See
Cynthia W. Ko et al., “Serious Complications Within 30 Days
of Screening and Surveillance Colonoscopy Are Uncom-
mon,” 8 Clinical Gastroenterology & Hepatology 166, 171–72
(2010). Operative colonoscopy has an even higher rate of ma-
jor complications, making it riskier than even second-
trimester abortions. See Jerome D. Waye et al., “Colonosco-
py: A Prospective Report of Complications,” 15 J. Clinical
No. 15-1736 13
Gastroenterology 347 (1992). It is conceivable that because of
widespread disapproval of abortion, abortions and their
complications may be underreported—some women who
experience them and are hospitalized may tell the hospital
staff that the complications are from a miscarriage. But there
is no evidence of significant or widespread underreporting.
The defendants argue that obtaining admitting privileges
operates as a kind of Good Housekeeping Seal of Approval
for a doctor. True; but obtaining the seal does not require
that the hospital in which the doctor obtains the privileges
be within 30 miles of his clinic. See, e.g., Women’s Health Cen-
ter of West County, Inc. v. Webster, 871 F.2d 1377, 1378–81 (8th
Cir. 1989). Several abortion doctors in Wisconsin who lack
admitting privileges at hospitals within the prescribed radi-
us have them—their Good Housekeeping Seals of Approv-
al—at more distant hospitals from their clinic yet are not ex-
cused by the statute from having to obtain the identical priv-
ileges from a hospital within the 30-mile radius.
The defendants argue that admitting privileges improve
continuity of care. But nothing in the statute requires an
abortion doctor who has admitting privileges to care for a
patient who has complications from an abortion. He doesn’t
have to accompany her to the hospital, treat her there, visit
her, call her, etc. The statute also does not distinguish be-
tween surgical and medical abortions. The latter term refers
to an abortion induced by pills given to the patient by her
doctor: she takes one pill in the clinic, goes home, and takes
an additional pill or pills one or two days later to complete
the procedure. Her home may be far from any hospital that
is within 30 miles of her doctor’s clinic, but close to a hospi-
tal farther from the clinic. If she calls an ambulance the par-
14 No. 15-1736
amedics are likely to take her to the nearest hospital—a hos-
pital at which her abortion doctor is unlikely to have admit-
ting privileges. Likewise in the case of surgical abortions
when complications occur not at the clinic during or imme-
diately after the abortion but after the patient has returned
home. Because of distance, she may lack ready access to
hospitals near the clinic at which the abortion was per-
formed. She may live near a hospital, but not a hospital at
which the doctor who performed her abortion has admitting
privileges.
We can imagine an argument that what Wisconsin did in
this case was to make the regulation of the treatment of abor-
tion complications simply the first step on the path to a regu-
lation of all potentially serious complications. But the de-
fendants have not argued this; nor is it plausible that the
state would begin such an effort with a procedure that has a
very low rate of serious complications. The statute has been
on the books for more than two years, yet there is no indica-
tion that the legislature has given any consideration to re-
quiring admitting privileges for any doctors other than abor-
tion providers.
The district judge had remarked in granting the prelimi-
nary injunction that while he would “await trial on the issue,
… the complete absence of an admitting privileges require-
ment for [other] clinical [i.e., outpatient] procedures includ-
ing for those with greater risk [than abortion] is certainly ev-
idence that [the] Wisconsin Legislature’s only purpose in its
enactment was to restrict the availability of safe, legal abor-
tion in this State, particularly given the lack of any demon-
strable medical benefit for its requirement either presented
to the Legislature or [to] this court.” Planned Parenthood of
No. 15-1736 15
Wisconsin, Inc. v. Van Hollen, No. 13–cv–465–wmc, 2013 WL
3989238, at *10 n. 26 (W.D. Wis. Aug. 2, 2013) (emphasis in
original). Confirmatory evidence is the statutory two-day
deadline for obtaining admitting privileges in order to be
allowed to perform abortions, though that deadline is of
course no longer operable. And we can’t forbear to mention
the weird private civil remedy for violations: The father, or a
grandparent, of the “aborted unborn child” is entitled to ob-
tain damages, including for emotional and psychological
distress, if the abortion was performed by a doctor who
lacked admitting privileges. Wis. Stat. § 253.095(4)(a). Were
the law aimed at protecting the mother’s health, as the state
contends, a violation of the law could harm the fetus’s father
or grandparent only if the mother were injured physically or
psychologically as a result of her abortion doctor’s lacking
the required admitting privileges. But the statute requires no
proof of any injury of any kind to the mother to entitle the
father or grandparent to damages upon proof of a violation
of the statute. Wis. Stat. § 253.095(4).
Until and unless Roe v. Wade is overruled by the Supreme
Court, a statute likely to restrict access to abortion with no
offsetting medical benefit cannot be held to be within the en-
acting state’s constitutional authority. The courts have “an
independent constitutional duty to review [a legislature’s]
factual findings where constitutional rights are at stake.”
Gonzales v. Carhart, 550 U.S. 124, 163–65 (2007). The Wiscon-
sin statute does not “further[] the legitimate interest” of the
state in advancing women’s health, and it was not “reasona-
ble for [the legislature] to think” that it would. Id. at 146, 160.
Were it not for the injunctions issued by the district court
(and the temporary restraining order that preceded them),
16 No. 15-1736
the statute would have substantially curtailed the availabil-
ity of abortion in Wisconsin, without conferring an offsetting
benefit (or indeed any benefit) on women’s health. Virtually
all abortions in Wisconsin are performed at the four abortion
clinics (the three Planned Parenthood clinics and the AMS
clinic); no other clinics perform abortions, and hospitals per-
form only a small fraction of the abortions performed in the
state. With the preliminary and now the permanent injunc-
tion having lifted the deadline for obtaining admitting privi-
leges, doctors at the three Planned Parenthood abortion clin-
ics (Milwaukee, Madison, and Appleton) have been able to
obtain admitting privileges at nearby hospitals. But the two
doctors at the fourth clinic, AMS, have been unable to obtain
such privileges at any hospital even though 17 hospitals are
within a 30-mile radius of the clinic.
Not that its doctors haven’t tried to obtain the privileges.
The district court found credible their testimony that the
chances of their being granted admitting privileges are “slim
to none.” The reason is that almost all of their practice con-
sists of performing abortions and they therefore lack recent
experience in performing inpatient medical procedures for
which hospitals would grant admitting privileges. Nor is
any of their clinical practice peer reviewed, which hospitals
also make a condition of granting admitting privileges. One
of the doctors couldn’t even obtain an application for admit-
ting privileges at Aurora-Sinai Hospital, because he couldn’t
show that he’d “treated patients in a hospital or appropriate
outpatient setting in which the Practitioner’s care was sub-
ject to evaluation through peer review acceptable to the Met-
ro Credentials Committee, in the previous twelve (12)
months.” Froedtert Hospital likewise rejected his applica-
tion, because he provided neither “evidence of recent (with-
No. 15-1736 17
in the past 2 years) inpatient activity” nor “an evaluation of
[his] ability to provide care for patients in the inpatient envi-
ronment.” The other AMS doctor was also rejected by Auro-
ra-Sinai, which told him he was ineligible to obtain full ad-
mitting privileges because he would be unable to admit the
required minimum of 20 patients per year, and that he could
not obtain courtesy privileges (which differ from full privi-
leges in allowing a doctor to admit only a very few patients)
without already having staff privileges at another hospital.
Another hospital, St. Joseph’s Community Hospital of West
Bend, requires applicants for obstetrics/gynecology admit-
ting privileges to have delivered 100 babies in the previous
two years, by which of course they mean live babies; and de-
livering live babies is not what abortion doctors do.
Moreover, all the hospitals require, as a condition to ob-
taining admitting privileges, demonstrated competence in
performing the particular procedures that the doctor seeks to
perform at the hospital on patients that he admits. Although
a defense expert from Columbia St. Mary’s Hospital testified
that the hospital would evaluate a physician’s quality with-
out requiring a record of inpatient care, he acknowledged
that a doctor seeking admitting privileges would have to
demonstrate competence to perform the specific procedures
for which he sought the privileges. Hospitals are entitled to
demand proof that doctors seeking to work at the hospital be
able to perform the procedures that they want to perform
there. But to condition the grant of admitting privileges on
being qualified to perform procedures that AMS’s abortion
doctors never perform is to bar them from performing abor-
tions.
18 No. 15-1736
So, as the district judge found, if the statute is valid nei-
ther of the AMS doctors will be allowed to perform any
abortions, and the clinic will have to shut down unless it can
recruit and retain other doctors—doctors who have or can
readily obtain admitting privileges within the prescribed ra-
dius of the clinic. But it is difficult to hire such doctors, not
only because it’s difficult for abortion doctors to obtain ad-
mitting privileges (especially within a prescribed radius of
the clinic) but also because of the vilification, threats, and
sometimes violence directed against abortion clinics and
their personnel in states, such as Wisconsin, in which there is
intense opposition to abortion.
AMS is particularly vulnerable because, as we’re about to
see, it’s the only abortion clinic in the state that performs
late-term abortions. But were the statute to be upheld,
Planned Parenthood’s clinics could also face having to close
or significantly reduce the abortions they perform, within a
few years, despite currently having doctors with admitting
privileges. Hospitals generally require that a doctor, to
maintain his admitting privileges, be responsible for admit-
ting a specified minimum number of patients annually. Be-
cause of the very low rate of complications from abortions
that require hospitalization, the required quotas may be dif-
ficult to meet.
One might think (setting that last point to one side for the
moment) that the Planned Parenthood abortion clinic in
Milwaukee would have adequate capacity to serve all wom-
en in the Milwaukee area who decide to have an abortion, in
which event the demise of AMS would be no big deal. Not
so. Of some 6462 abortions performed in Wisconsin in 2013
(the latest year for which there are complete figures), 5800
No. 15-1736 19
were performed in abortion clinics in the state (see Wiscon-
sin Department of Health Services, “Reported Induced
Abortions in Wisconsin, 2013,” Aug. 2014,
www.dhs.wisconsin.gov/publications/p4/p45360-13.pdf),
and 2500 of those were performed by AMS. (Presumably the
662 abortions not performed in abortion clinics were per-
formed in hospitals.)
The Planned Parenthood clinic in Milwaukee would have
to expand staff and facilities to accommodate such an influx
(the Planned Parenthood clinic in Appleton is more than a
hundred miles from Milwaukee, and the Madison clinic
eighty miles, distances that would impose hardship on some
women who live close to Milwaukee and are seeking abor-
tions), and this would be costly and could even be impossi-
ble given the difficulty of recruiting abortion doctors. The
district judge accepted uncontradicted testimony that
Planned Parenthood could not absorb the additional de-
mand for abortions, and the result (of demand exceeding
supply) would be an 8 to 10 week delay in obtaining an
abortion. Some women would have to forgo first-trimester
abortions and instead get second-trimester ones, which are
more expensive and present greater health risks. Other
women would be unable to obtain any abortion, because the
delay would push them past the 18.6-weeks-LMP (“last
menstrual period,” which is likely to precede conception by
a couple of weeks) deadline for the Planned Parenthood clin-
ics’ willingness to perform abortions. Only AMS will per-
form abortions beyond that limit (up to 22 and occasionally
24 weeks of pregnancy). Women seeking lawful abortions
that late in their pregnancy, either because of the waiting list
or because they hadn’t realized their need for an abortion
sooner, would be unable to obtain abortions in Wisconsin.
20 No. 15-1736
AMS performs about 250 late-term abortions each year
(and that’s without the additional patients who would be
pushed past 18.6 weeks by an 8 to 10 week waiting list).
And, to repeat, it’s the only abortion clinic in Wisconsin that
performs such abortions. Although the state points out that
these late-term abortions currently constitute fewer than one
percent of the abortions performed in the state, “the analysis
does not end with the one percent of women upon whom
the statute operates; it begins there.” Planned Parenthood of
Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 894 (plu-
rality opinion). For the longer the waiting list for an abor-
tion, the more women who want to have early-term abor-
tions will perforce end up having late-term ones, which are
more dangerous.
No problem, argues the state, since Chicago is only 90
miles from Milwaukee, and there is at least one clinic in Chi-
cago that will perform abortions after 19 weeks. The logic of
the state’s position is that it could forbid both abortion clin-
ics in Milwaukee to perform abortions on anyone living in
that city, given that the Chicago clinics are only about 90
miles away (and one clinic, in the northern suburbs of Chi-
cago, is only 74 miles from Milwaukee’s city center).
The state’s position is untenable. As we said in Ezell v.
City of Chicago, 651 F.3d 684, 697 (7th Cir. 2011), the proposi-
tion that
the harm to a constitutional right [can be] measured by the
extent to which it can be exercised in another jurisdiction
… [is] a profoundly mistaken assumption. In the First
Amendment context, the Supreme Court long ago made it
clear that “one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that
No. 15-1736 21
it may be exercised in some other place.” Schad v. Borough
of Mt. Ephraim, 452 U.S. 61, 76–77 (1981), quoting Schneider
v. New Jersey, 308 U.S. 147, 163 (1939). The same principle
applies here. It’s hard to imagine anyone suggesting that
Chicago may prohibit the exercise of a free-speech or reli-
gious-liberty right within its borders on the ground that
those rights may be freely enjoyed in the suburbs.
Or as the Supreme Court put it in Missouri ex rel. Gaines v.
Canada, 305 U.S. 337, 350 (1938),
the obligation of the State to give the protection of equal
laws can be performed only where its laws operate, that is,
within its own jurisdiction. It is there that the equality of
legal right must be maintained. That obligation is imposed
by the Constitution upon the States severally as govern-
mental entities—each responsible for its own laws estab-
lishing the rights and duties of persons within its borders.
It is an obligation the burden of which cannot be cast by
one State upon another, and no State can be excused from
performance by what another State may do or fail to do.
See also Jackson Women’s Health Organization v. Currier, supra,
760 F.3d at 457–58. It’s true that we said in A Woman’s
Choice–East Side Women’s Clinic v. Newman, 305 F.3d 684, 688
(7th Cir. 2002), that the undue burden standard should be
applied “to the nation as a whole, rather than one state at a
time.” But the statement, though in seeming tension with
Gaines and Jackson, has nothing to do with looking at the
availability of abortion services across state lines. Instead the
court was worried that district judges in different states
might reach different conclusions about the constitutionality
of nearly identical statutes.
22 No. 15-1736
It’s also true, though according to the cases just quoted
irrelevant, that a 90-mile trip is no big deal for persons who
own a car or can afford an Amtrak or Greyhound ticket. But
more than 50 percent of Wisconsin women seeking abortions
have incomes below the federal poverty line and many of
them live in Milwaukee (and some north or west of that city
and so even farther away from Chicago). For them a round
trip to Chicago, and finding a place to stay overnight in Chi-
cago should they not feel up to an immediate return to Wis-
consin after the abortion, may be prohibitively expensive.
The State of Wisconsin is not offering to pick up the tab, or
any part of it. These women may also be unable to take the
time required for the round trip away from their work or the
care of their children. The evidence at trial, credited by the
district judge, was that 18 to 24 percent of women who
would need to travel to Chicago or the surrounding area for
an abortion would be unable to make the trip.
An abortion-restricting statute sought to be justified on
medical grounds requires not only reason to believe (here
lacking, as we have seen) that the medical grounds are valid,
but also reason to believe that the restrictions are not dis-
proportionate, in their effect on the right to an abortion, to
the medical benefits that the restrictions are believed to con-
fer and so do not impose an “undue burden” on women
seeking abortions. See Planned Parenthood of Southeastern
Pennsylvania v. Casey, supra, 505 U.S. at 874, 877, 900–01 (plu-
rality opinion); Gonzales v. Carhart, supra, 550 U.S. at 146,
157–58; Stenberg v. Carhart, 530 U.S. 914, 930, 938 (2000). To
determine whether the burden imposed by the statute is
“undue” (excessive), the court must “weigh the burdens
against the state’s justification, asking whether and to what
extent the challenged regulation actually advances the state’s
No. 15-1736 23
interests. If a burden significantly exceeds what is necessary
to advance the state’s interests, it is ‘undue,’” Planned
Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 913 (9th Cir.
2014), which is to say unconstitutional. The feebler the medi-
cal grounds (in this case, they are nonexistent), the likelier is
the burden on the right to abortion to be disproportionate to
the benefits and therefore excessive.
There are those who would criminalize all abortions,
thus terminating the constitutional right asserted in Roe and
Casey and a multitude of other decisions. And there are
those who would criminalize all abortions except ones that
terminate a pregnancy caused by rape or are necessary to
protect the life or (in some versions) the health of the preg-
nant woman. But what makes no sense is to abridge the con-
stitutional right to an abortion on the basis of spurious con-
tentions regarding women’s health—and the abridgment
challenged in this case would actually endanger women’s
health. It would do that by reducing the number of abortion
doctors in Wisconsin, thereby increasing the waiting time for
obtaining an abortion, and that increase would in turn com-
pel some women to defer abortion to the second trimester of
their pregnancy—which the studies we cited earlier find to
be riskier than a first-trimester abortion. For abortions per-
formed in the first trimester the rate of major complications
is 0.05-0.06 percent (that is, between five one-hundredths of
1 percent and six one-hundredths of 1 percent). It is 1.3 per-
cent for second-trimester abortions—between 22 and 26
times higher.
The burden on abortion imposed by the Wisconsin stat-
ute is greater than in the cases in which the Fourth and Fifth
Circuits have upheld similar admitting privileges require-
24 No. 15-1736
ments, because the plaintiffs in those cases failed to satisfy
the courts that the challenged statutes would lead to a sub-
stantial decline in the availability of abortion. In both
Planned Parenthood of Greater Texas Surgical Health Services v.
Abbott, supra, 748 F.3d at 597–98, and Greenville Women’s
Clinic v. Bryant, 222 F.3d 157, 162, 170 (4th Cir. 2000), the
courts decided that the evidence compelled only a conclu-
sion that one clinic in each state would close as a result of the
statute and each of those two clinics performed only a small
proportion of its state’s abortions.
The Fifth Circuit also upheld another requirement in the
same statute—that abortion clinics must meet the standards
for ambulatory surgical centers—despite the evidence that as
a result of this requirement only eight clinics would survive
out of the more than forty in existence when the statute was
enacted. Whole Woman’s Health v. Cole, 790 F.3d 563, 578 (5th
Cir. 2015), cert. granted, 2015 WL 5176368 (Nov. 13, 2015).
The court remarked the absence of evidence that the remain-
ing clinics could not expand their capacity to compensate for
the closing of more than three-fourths of them, id. at 590, alt-
hough one wouldn’t think it necessary to parade evidence
that the remaining clinics would find it extremely difficult to
quadruple their capacity to provide abortions, which would
require, in the face of fierce opposition to abortion clinics
and the difficulty of relocating abortion doctors from the
closed clinics, extensive physical enlargement to house addi-
tional patients and doctors.
A great many Americans, including a number of judges,
legislators, governors, and civil servants, are passionately
opposed to abortion—as they are entitled to be. But persons
who have a sophisticated understanding of the law and of
No. 15-1736 25
the Supreme Court know that convincing the Court to over-
rule Roe v. Wade and Planned Parenthood of Southeastern Penn-
sylvania v. Casey is a steep uphill fight, and so some of them
proceed indirectly, seeking to discourage abortions by mak-
ing it more difficult for women to obtain them. They may do
this in the name of protecting the health of women who have
abortions, yet as in this case the specific measures they sup-
port may do little or nothing for health, but rather strew im-
pediments to abortion. This is true of the Texas requirement,
upheld by the Fifth Circuit in the Whole Woman’s case now
before the Supreme Court, that abortion clinics meet the
standards for ambulatory surgical centers—a requirement
that if upheld will permit only 8 of Texas’s abortion clinics to
remain open, out of more than 40 that existed when the law
was passed. And comparably in our case the requirement of
admitting privileges cannot be taken seriously as a measure
to improve women’s health because the transfer agreements
that abortion clinics make with hospitals, plus the ability to
summon an ambulance by a phone call, assure the access of
such women to a nearby hospital in the event of a medical
emergency.
Opponents of abortion reveal their true objectives when
they procure legislation limited to a medical procedure—
abortion—that rarely produces a medical emergency. A
number of other medical procedures are far more dangerous
to the patient than abortion, yet their providers are not re-
quired to obtain admitting privileges anywhere, let alone
within 30 miles of where the procedure is performed. Nor is
it likely to have been an accident that the Wisconsin legisla-
ture, by making its law requiring admitting privileges effec-
tive immediately, would have prevented most of the abor-
tion doctors in the state from performing any abortions for
26 No. 15-1736
months (for it usually takes months to obtain admitting priv-
ileges) had the district court not issued a temporary restrain-
ing order followed immediately by a preliminary injunction.
In Planned Parenthood of Greater Texas the court excoriated
our opinion upholding the preliminary injunction in the pre-
sent case, on the ground that we had insisted on evidence that
requiring abortion doctors to have admitting privileges
would improve women’s health. 748 F.3d at 596. The Fifth
Circuit said that the “first step in the analysis of an abortion
regulation … is rational basis review, not empirical basis re-
view.” Id. (emphases in original). Indeed it said “there is
‘never a role for evidentiary proceedings’ under rational ba-
sis review.” Id. We take that to be a reference to the motive
for “rational basis” review of state laws—namely a reluc-
tance by the federal judiciary to invalidate state laws that
even if difficult to defend or explain by reference to sound
public policy do not cause harm serious enough to be classi-
fied as depriving persons of life, liberty, or property, howev-
er broadly those terms are understood.
But a statute that curtails the constitutional right to an
abortion, such as the Wisconsin and Texas statutes, cannot
survive challenge without evidence that the curtailment is
justifiable by reference to the benefits conferred by the stat-
ute. The statute may not be irrational, yet may still impose
an undue burden—a burden excessive in relation to the aims
of the statute and the benefits likely to be conferred by it—
and if so it is unconstitutional.
The evidence of benefits that was presented to the Texas
legislature and discussed by the Fifth Circuit was weak; in
our case it’s nonexistent. The principal witness for the State
of Wisconsin, Dr. Thorp, mentioned earlier, testified that the
No. 15-1736 27
death rate for women who undergo abortions is the same as
for other pregnant women. But he could not substantiate
that proposition and admitted that both rates are very low.
His expert report states that there are “increased risks of
death for women electing [abortion] compared to child-
birth,” but the studies he cited measured long-term mortali-
ty rates rather than death resulting from an abortion, and
also failed to control for socioeconomic status, marital status,
or a variety of other factors relevant to longevity. See David
Reardon & Priscilla Coleman, “Short and Long Term Mortal-
ity Rates Associated with First Pregnancy Outcome: Popula-
tion Register Based Study for Denmark 1980–2004,” 18 Medi-
cal Science Monitor PH71, PH75 (2012); Coleman et al., “Re-
productive History Patterns and Long-Term Mortality Rates:
A Danish, Population-Based Record Linkage Study,” 23 Eu-
ropean J. Public Health 569, 569, 573 (2012). In contrast, the
plaintiffs’ expert Dr. Laube tendered a more apt study which
concluded that the risk of death associated with childbirth is
14 times higher than that associated with abortion. See Eliza-
beth G. Raymond & David A. Grimes, “The Comparative
Safety of Legal Induced Abortion and Childbirth in the
United States,” 119 Obstetrics & Gynecology 215 (Feb. 2012).
Dr. Thorp acknowledged that the number of abortion
providers is declining, but attributed this (again without
substantiation) not to harassment but to our society’s “pro-
gressing in its recognition of what constitutes human life.”
And he agreed as we noted earlier that admitting privileges
are no more necessary for abortion than for other outpatient
surgical procedures. Neither Thorp nor any other witness for
the defendants was able to cite a case in which a woman
who had a complication from an abortion wasn’t properly
treated for it because her abortion doctor lacked admitting
28 No. 15-1736
privileges. The evidence was heavily weighted against the
defendants. We do not agree with the Fifth Circuit that evi-
dence is irrelevant in a constitutional case concerning abor-
tion.
The state insists that the plaintiffs’ medical expert and the
neutral expert agreed with it that admitting privileges
would be a good thing for abortion doctors to have. But a
fair interpretation of their testimony is that a doctor’s admit-
ting privileges are of value to a patient because they suggest
that the hospital that has granted them thinks well of the
doctor and because he may be able to expedite the admission
of a patient who needs hospital care to the hospital in which
the doctor has those privileges. These witnesses did not testi-
fy that an abortion doctor who lacks admitting privileges is a
danger to his patients. The neutral expert, Dr. Bulun, said
that privileges could have advantages, but he was compar-
ing a doctor with privileges to one without privileges; he
was not asked whether a shortage of abortion doctors,
though such abortion doctors as there were all had privileg-
es, would be preferable to there being enough abortion doc-
tors but not all with admitting privileges. He added that “if
there’s a well-established procedure for a transfer agree-
ment, in my mind that would be the most important factor
to ensure good quality of care.” There is no evidence that
transfer agreements provide inferior protection to the health
of women undergoing abortion compared to admitting priv-
ileges. When the transfer agreements and the availability of
emergency-room care and the rarity of complications of abor-
tion that require hospitalization are compared to the impact
this statute would have on access to abortion in Wisconsin, it
is apparent that the defendants have failed to make a dent in
No. 15-1736 29
the district court’s opinion granting the permanent injunc-
tion sought by the plaintiffs.
AFFIRMED
30 No. 15-1736
MANION, Circuit Judge, dissenting.
In June 2013, the Wisconsin legislature introduced a statute
requiring abortion doctors to have admitting privileges at a
nearby hospital. The statute was signed into law the following
month, and the plaintiffs obtained a preliminary injunction
from the district court, which we affirmed. Planned Parenthood
of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). The
district court then granted a permanent injunction on the
merits, finding that the admitting-privileges requirement
unconstitutionally infringed on a woman’s right to abortion.
Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949
(W.D. Wis. 2015). Relying on the novel legal standard crafted
by the majority in Van Hollen, the district court reached this
result by shifting the burden onto the state to adduce empirical
evidence justifying the rationality of its regulation. Id. at
962–64. This was error. Under well-established Supreme
Court precedent, the state may constitutionally regulate
abortion so long as it has a rational basis to act and does not
impose an undue burden. Gonzales v. Carhart, 550 U.S. 124, 158
(2007). Because Wisconsin’s admitting-privileges requirement
satisfies this standard, I dissent.
I
Between 2009 and 2013, at least nineteen women who
sought abortions at Planned Parenthood clinics in Wisconsin
subsequently received hospital treatment for abortion-related
complications.1 Surely, no reasonable patient considering a
1
See Dkt. 198 ¶ 11. The record also reveals that, during that period, at least
four patients who received abortions at those clinics were transferred from
the clinics to a hospital by ambulance for abortion-related complications,
and four women reported that they had post-abortion infections that
No. 15-1736 31
medical procedure known to result in
complications—potentially even death—would regard state
measures designed to minimize those risks as an imposition on
her constitutional rights. After all, patients are more likely to
undergo medical procedures when they know that discrete
measures have been taken by the state to reduce the likelihood
of harm. Recognizing these basic facts, the four other federal
appellate circuits that have examined similar admitting-
privilege requirements have found or assumed a rational basis
for them. This is such common sense that it would scarcely
warrant mention in any other context. But this case involves
abortion, so all bets are off.
Safety is not a negligible concern in any field of healthcare.
Abortion—which is subject to less regulatory oversight than
almost any other area of medicine—bears no exception. When
we first reviewed Wisconsin’s admitting-privileges require-
ment, my concurrence cited numerous examples of egregious
“abortion care” in states across the nation. One article detailed
the practices at former abortionist Kermit Gosnell’s clinic in
Pennsylvania, which included unlicensed personnel conduct-
ing gynecological examinations and administering painkillers.
These practices resulted in the death of a patient named
Karnamaya Mongar, who died after being given an overdose
of anesthesia and pain medication. Media reports also circu-
resulted in treatment at a hospital. Id. ¶¶ 12–13. Additionally, between 2009
and 2014, at least eight AMS abortion patients were transferred directly
from AMS’s abortion clinic to a hospital to treat serious complications from
an abortion procedure performed by one of AMS’s physicians. Id. ¶ 26.
During that same time period, at least three AMS abortion patients suffered
complications serious enough that a hysterectomy was required, resulting
in those patients no longer being able to bear children. Id. ¶ 27.
32 No. 15-1736
lated that Dr. Gosnell physically assaulted and performed a
forced abortion on a minor and left fetal remains in a woman’s
uterus, causing her excruciating pain.
Dr. Gosnell was ultimately convicted of murder for the
deaths of three infants delivered alive but subsequently killed
at his clinic. In light of the nationwide attention that Dr.
Gosnell’s shop of horrors attracted, the Wisconsin State
Assembly acted swiftly to pass Act 37, including the admitting-
privileges requirement at issue, in order to protect the health
and safety of pregnant women who have chosen an abortion.
This lawsuit followed.
Dr. Gosnell was able to run his operation in a regulatory
vacuum derived in no small part from the view held by some
that any regulation upon his practice was a threat to the
constitutional rights of his patients. Although we have recog-
nized that doctors may bring suit on behalf of their abortion
patients, it does not automatically follow that doctors and
patients have identical interests. The constitutional right to
privacy exists across the spectrum of medical procedures, yet
in no other area of medicine may a doctor bring a suit on behalf
of a patient solely because the doctor finds a safety regulation
cumbersome. Where state regulation imposes on doctors
measures designed to improve patient safety, doctor-patient
interests may diverge. Because that is precisely the case in this
instance, we must look to the regulation’s effect on the pro-
spective patient, not to the inconvenience the regulation
presents to the abortionist.
Rather than shift the burden to the state to provide reasons
it was justified to enact the law at issue, we are obligated to
uphold a law that regulates abortion where there is a rational
basis to act so long as the law does not have the effect of
No. 15-1736 33
imposing an undue burden on a woman’s ability to make the
decision to choose abortion. Here, the court sets this burden of
proof exactly backwards. Because Wisconsin’s admitting-
privileges requirement protects the health and safety of
pregnant women and does not constitute an undue burden
under Casey, I would join the Fifth Circuit’s merits decision in
Planned Parenthood of Greater Texas Surgical Health Services v.
Abbott, 748 F.3d 583 (5th Cir. 2014), reh’g en banc denied, 769 F.3d
330 (5th Cir. 2014) (Abbott II), which upheld a functionally
identical law on similar facts. All of these facts lead me to the
conclusion that the judgment of the district court should be
reversed. For the reasons that follow, I dissent.
II
A. Wisconsin has a Rational Basis to protect the health
and safety of pregnant women seeking an abortion.
The Supreme Court’s surviving abortion cases have
repeatedly affirmed that the state has a substantial interest in
regulating abortion in furtherance of its interests in promoting
the health and safety of pregnant women. See, e.g., Gonzales v.
Carhart, 550 U.S. 124, 158, 163 (2007); Stenberg v. Carhart, 530
U.S. 914, 931 (2000); Mazurek v. Armstrong, 520 U.S. 968, 973
(1997) (per curiam); Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 846, 878 (1992) (plurality); Roe v. Wade, 410 U.S. 113,
150, 163 (1973). So have ours. See, e.g., Karlin v. Foust, 188 F.3d
446, 478 (7th Cir. 1999); Planned Parenthood of Wis. v. Doyle, 162
F.3d 463, 467 (7th Cir. 1998).
Although the court purports to be consistent with these
cases, in reality, its decision undermines the state’s interest
recognized within them. By doing so, the court sets a danger-
ous precedent that jeopardizes the ability of states to enact
34 No. 15-1736
laws designed to curb risks to the safety and welfare of patients
who choose to undergo invasive medical
procedures—including the women whom this admitting-
privileges law protects. A brief reminder of the Supreme
Court’s repeated emphasis on the state’s interest in protecting
the health and safety of pregnant women who have chosen
abortion is apparently necessary.
B. The Supreme Court’s abortion decisions
In Roe, the Court recognized that a state has a “legitimate
interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure
maximum safety for the patient.” Roe, 410 U.S. at 150. The
Court concluded that the state’s legitimate interest in regulat-
ing abortion to protect maternal health “obviously extends at
least to [regulating] the performing physician and his staff, to
the facilities involved, to the availability of after-care, and to
adequate provision for any complication or emergency that
may arise.” Id. Roe left no doubt that the state “may regulate
the abortion procedure to the extent that the regulation
reasonably relates to the preservation and protection of
maternal health.” Id. at 163.
In Casey, the Court abandoned Roe’s rigid trimester frame-
work. Casey, 505 U.S. at 872–76. But not before reiterating that
“the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life
of the fetus that may become a child.” Id. at 846. Further, the
Court added that, “[a]s with any medical procedure, the State
may enact regulations to further the health or safety of a
woman seeking an abortion.” Id. at 878.
Five years later, in Mazurek, the Court rejected a challenge
No. 15-1736 35
brought by abortion providers to a state law that restricted the
provision of abortions only to licensed physicians. Mazurek,
520 U.S. at 976. By so ruling, the Court recalled that its “cases
reflect the fact that the Constitution gives the States broad
latitude to decide that particular functions may be performed
only by licensed professionals.” Id. at 973 (citation omitted).
Shortly thereafter, in Stenberg, the Court underscored Roe
and Casey’s commitment to the health and safety of pregnant
women by striking down a federal law that made partial-birth
abortion illegal because it failed to contain a “health exception
. . . ‘for the preservation of the life or health of the mother.’”
Stenberg, 530 U.S. at 938 (citation omitted). In laying the
foundation for its decision, the Court first recalled that it has
“repeatedly invalidated statutes that in the process of regulat-
ing the methods of abortion, imposed significant health risks.”
Id. at 931 (emphasis omitted). Channeling Casey, the Court then
summarized the state’s interest in the health of pregnant
women as follows: “‘where it is necessary, in appropriate
medical judgment for the preservation of the life or health of
the mother,’ [] this Court has made clear that a State may
promote but not endanger a woman’s health when it regulates
the methods of abortion.” Id. (citations omitted).
Most recently, in Gonzales, the Court consolidated these
principles, acknowledging that “[w]here it has a rational basis
to act, and it does not impose an undue burden, the State may
use its regulatory power” to regulate abortion. Gonzales 550
U.S. at 158. Gonzales held that state and federal lawmakers
have “wide discretion to pass legislation in areas where there
is medical and scientific uncertainty.” Id. at 163 (citations
omitted). In short, over four decades of Supreme Court
decisions establish that the state has a legitimate interest in
36 No. 15-1736
promoting the health and safety of pregnant women seeking
an abortion.
C. The court splits with four federal appellate circuits.
Mindful of the health and safety interests recognized in
these decisions, Wisconsin and eleven other states have passed
admitting-privilege laws. Planned Parenthood of Wis. v. Van
Hollen, 738 F.3d 786, 791 (7th Cir. 2013). Lawsuits initiated by
abortion providers followed, and multiple circuits have ruled
on their constitutionality. The rationales deployed in these
decisions have varied, but two facts are common throughout.
First, every circuit to rule on similar admitting-privileges laws
like the one at issue here has uniformly upheld them. Second,
no circuit except ours has ventured anywhere close to adopting
the extreme position taken by the court that a state’s admitting-
privileges law lacks a rational basis. See Whole Women’s Health
v. Cole, 790 F.3d 563, 584 (5th Cir. 2015) (plaintiffs challenging
Texas’s admitting-privileges law concede it is supported by a
rational basis); Jackson Women’s Health Org. v. Currier, 760 F.3d
448, 454 (5th Cir. 2014) (“H.B. 1390 satisfies rational basis
review based upon our binding precedent in Abbott.”); Planned
Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.
2014) (“We assume without deciding that the Arizona law
passes rational-basis review.”); Abbott II, 748 F.3d at 595
(“Applying the rational basis test correctly, we have to con-
clude that the State acted within its prerogative to regulate the
medical profession by heeding these patient-centered concerns
and requiring abortion practitioners to obtain admitting
privileges at a nearby hospital.”); Planned Parenthood of Greater
Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 411 (5th Cir.
2013) (Abbott I) (“The State offered more than a conceivable
state of facts that could provide a rational basis for requiring
No. 15-1736 37
abortion physicians to have hospital admission privileges.”)
(footnote and internal marks omitted); Greenville Women’s
Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control, 317 F.3d
357, 363 (4th Cir. 2002) (“These requirements of having
admitting privileges at local hospitals and referral arrange-
ments with local experts are so obviously beneficial to
patients.”) (citations omitted); Women’s Health Ctr. of W. Cty.,
Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989) (“We have no
difficulty in concluding that [the admitting-privileges law]
rationally relates to the state’s legitimate interest in ensuring
that prompt backup care is available to patients who undergo
abortions in outpatient clinics.”).
The rational basis standard is no stranger to the judiciary.
Federal courts across the nation apply it regularly when
constitutional challenges are brought against state action.
Familiar as it may be, the district court failed to apply it,
proceeding instead as though the state bore the burden of
proving that its admitting-privileges law was reasonably
related to the health and safety of women seeking abortions.
Van Hollen, 94 F. Supp. 3d at 964 (“Since the State contends that
the admitting privileges requirement at issue is reasonably
directed to the health of women seeking abortions, it has the
burden of demonstrating this link.”) (citations omitted).
That’s exactly backwards. Under rational basis review,
courts must presume that the law in question is valid and
uphold it so long as the law is rationally related to a legitimate
state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985). Since the Supreme Court has repeatedly
recognized the state’s longstanding interest in protecting the
health and safety of pregnant women who have chosen
abortion, at this juncture, “we must presume that the
38 No. 15-1736
admitting-privileges requirement is constitutional, and uphold
it so long as the requirement is rationally related to Wisconsin’s
legitimate interests.” Van Hollen, 738 F.3d at 800 (Manion, J.,
concurring in part and in the judgment) (citations omitted).
The party challenging an abortion restriction bears the burden
of proving the government’s action irrational. See Mazurek, 520
U.S. at 971 (citing Casey, 505 U.S. at 884). To prove a legislative
act irrational, “the burden is on the one attacking the legislative
arrangement to negate every conceivable basis which might
support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (citation
omitted). This is a tall order because “the government may
defend the rationality of its action on any ground it can
muster.” RJB Props., Inc. v. Bd. of Educ. of Chic., 468 F.3d 1005,
1010 (7th Cir. 2006) (citation and internal marks omitted).
Thus, the inquiry for courts under rational basis review
starts with this question: is there “any reasonably conceivable
state of facts that could provide a rational basis” for the state
regulation? See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993); Abbott I, 734 F.3d at 411. As demonstrated above, the
answer to that question is yes. So the next question to ask is
whether the state’s means of promoting its regulation (admit-
ting privileges) are reasonably related to the legitimate interest
already established (patient safety). If that answer is also yes,
then the regulation satisfies rational basis review, and we must
uphold it. That the controversy implicates abortion does not
alter the analysis because “[n]othing in the Supreme Court’s
abortion jurisprudence deviates from the essential attributes of
the rational basis test, which affirms a vital principle of
No. 15-1736 39
democratic self-government.” Abbott II, 748 F.3d at 594.2
D. Admitting privileges further Wisconsin’s legitimate
state interest in patient safety.
Admitting privileges are, in the words of the Fourth Circuit,
“obviously beneficial.” Greenville Women’s Clinic, 317 F.3d at
363 (citation omitted). So beneficial, in fact, that the National
Abortion Federation recommended them until only recently.
At trial, Wisconsin’s expert, Dr. James Anderson, Clinical
Professor in the Department of Family Practice & Population
Health at Virginia Commonwealth University School of
Medicine, referenced a publication from the National Abortion
Federation entitled Having an Abortion? Your Guide to Good Care
(2000), which states that “[i]n the case of emergency, the doctor
should be able to admit patients to a nearby hospital (no more
than 20 minutes away).” Dkt. 244 at 237–40; Dkt. 126 ¶¶ 6-7.
Indeed, the medical community has long been of the
opinion that admitting privileges provide a real benefit to the
2
In its efforts to wrest this case from the ambit of rational basis review, the
court assigns great weight to numerous studies and reports which contend
that complications rarely occur after abortions and that those which do
occur are not more frequent than other types of outpatient surgeries. But
this is immaterial because courts do not weigh evidence when they apply
rational basis review. See Nat’l Paint & Coatings Ass’n v. City of Chic., 45 F.3d
1124, 1127 (7th Cir. 1995) (recalling that there is “never a role for eviden-
tiary proceedings” under rational basis review). For the plaintiffs to prevail,
they must prove that post-abortion complications never occur in Wisconsin,
or that admitting privileges have no impact on safety. See Heller, 509 U.S. at
321 (“[T]he burden is on the one attacking the legislative arrangement to
negate every conceivable basis which might support it.”) (citation and
internal marks omitted). However, that is not possible on this record,
because the plaintiffs’ own expert and the court-appointed expert testified
that admitting privileges are beneficial because they make abortion safer.
40 No. 15-1736
health and safety of pregnant women seeking an abortion. In
2003, the American College of Surgeons issued a statement on
patient-safety principles that was joined by the American
Medical Association and the American College of Obstetricians
and Gynecologists. They listed several “core principles,” the
fourth of which provided that: “[p]hysicians performing
office-based surgery must have admitting privileges at a
nearby hospital, a transfer agreement with another physician
who has admitting privileges at a nearby hospital, or maintain
an emergency transfer agreement with a nearby hospital.”3
Perplexingly, in this case, the AMA and ACOG have filed
a joint amicus brief arguing that Wisconsin’s admitting-
privileges law is unconstitutional. Yet their brief makes no
mention of their 2003 statement or their sudden, yet conve-
nient, disavowal of one of their “core principles” related to
patient safety. It appears from the trial testimony that plaintiff-
doctors have simply decided that admitting privileges are only
desirable insofar as they do not cause members of their guild
to become ineligible to perform abortions.
Abbott II also supports this conclusion. There, the court
observed that “[t]here are four main benefits supporting the
requirement that operating surgeons hold local hospital
admitting and staff privileges: (a) it provides a more thorough
evaluation mechanism of physician competency which better
protects patient safety; (b) it acknowledges and enables the
importance of continuity of care; (c) it enhances inter-physician
3
See American College of Surgeons, Statement on Patient Safety Principles
for Office-based Surgery Utilizing Moderate Sedation/Analgesia, Deep Seda-
tion/Analgesia, or General Anesthesia, Bulletin of the American College of
Surgeons, Vol. 89, No. 4 (Apr. 2004), available at http://www.facs.org/
fellows_info/statements/st-46.html (last visited Nov. 12, 2015).
No. 15-1736 41
communication and optimizes patient information transfer and
complication management; and (d) it supports the ethical duty
of care for the operating physician to prevent patient aban-
donment.” Abbott II, 748 F.3d at 592. Here, the parties have
consolidated these four categories of benefits into three. The
trial record contains evidence that admitting privileges are
rationally related to a legitimate state interest because they
promote the health and safety of pregnant women seeking
abortions in Wisconsin.4 Therefore, at the first step of the
Gonzales test, this requirement is subject to rational basis
review. I address each benefit in turn.
i. Continuity of care
Continuity of care is beneficial to abortion patients because
it reduces the “risk of injury caused by miscommunication and
misdiagnosis when a patient is transferred from one health
care provider to another.” Abbott II, 748 F.3d at 595. Indeed,
even plaintiff and expert witness Dr. Kathy King of Planned
Parenthood agreed that continuity of care is a necessary
ingredient when treating patients. Dkt. 243 at 155.
4
The district court presupposed that the lack of required admitting
privileges for other, more dangerous medical procedures showed that the
only purpose of Wisconsin’s law was to restrict safe, legal abortions. It also
concluded that the immediate effective date after signing was clearly
intended to close the clinics. But the legislative purpose was not to
immediately close the clinics. The legislature approved the statutes several
weeks before the governor signed the legislation. There is no evidence that
their apparent failure to designate a specific effective date was anything
other than a simple oversight. The preliminary injunction, with which I
concurred, quickly cured that problem. Significantly, the preliminary
injunction and the delay in connection with the trial enabled all of Planned
Parenthood’s abortion doctors to acquire admitting privileges.
42 No. 15-1736
Dr. King’s opinion was shared by the court-appointed
expert, Dr. Serdar Bulun, Chair of the Department of Obstetrics
and Gynecology at Northwestern University’s Feinberg School
of Medicine, who also opined that “physician to physician
communication is one of the most important requirements for
optimal handling of a complication arising from a procedure,”
and that “communication should ideally take place between
the physician performing the abortion and the physician at the
hospital, who will be handling the complication.” 7th Cir. Dkt.
44 at 4.5 Dr. Bulun testified further that admitting privileges
would have benefits “probably 90% of the time,” Dkt. 244 at 60,
and that while transfer agreements were important, “in an
ideal world both [admitting privileges and transfer agree-
ments] should exist.” Id. at 61.
Likewise, Wisconsin’s experts, including Dr. Anderson and
Dr. John Thorp (a board-certified ob-gyn who teaches at the
University of North Carolina’s School of Public Health), opined
that admitting privileges aided in promoting continuity of care.
5
In its standing analysis, the court correctly recognizes that a woman who
has had or is expecting to have an abortion does not want her name exposed
as a plaintiff in a lawsuit challenging the constitutionality of the law
regulating abortion practices. The same privacy concerns would be
encountered if a woman suffering from an abortion-related injury had to go
to the nearest emergency room. There she would have to give her name and
disclose the cause of her injury (or else lie about it, suggesting that it must
have been a natural miscarriage). She may also have to wait in line before
being treated, or undergo preliminary examinations to determine the nature
and source of the problem. If admitting privileges were in place, by
contrast, the woman’s operating physician could bypass any embarrassing
delay and promptly secure the woman’s admission and treatment upon
arrival. In this way, the physician-to-physician communication facilitated
by the admitting-privileges requirement would help protect the woman’s
privacy and promote more efficient remedial treatment.
No. 15-1736 43
Id. at 233 (Dr. Anderson); Dkt. 131 ¶ 22 & Dkt. 164 ¶ 15 (Dr.
Thorp).
The opinions of these medical professionals are shared, too,
by the Fifth Circuit, which concluded that “[r]equiring abortion
providers to have admitting privileges would also promote the
continuity of care in all cases, reducing the risk of injury caused
by miscommunication and misdiagnosis when a patient is
transferred from one health care provider to another.” Abbott
II, 748 F.3d at 595.
ii. Credentialing
Similarly, the “credentialing process entailed in the regula-
tion reduces the risk that abortion patients will be subjected to
woefully inadequate treatment.” Id. In other words,
credentialing advances the state’s interest in promoting patient
health by helping ensure that doctors performing abortions are
qualified. Dr. Geoffrey R. Keyes, president of the American
Association for Accreditation of Ambulatory Surgery Facilities,
opined that “credentialing and privileging serve important and
necessary functions in contemporary medical practice, primar-
ily to ensure that patients receive safe high quality care from
providers with appropriate skill, training and experience.” Dkt.
127 ¶ 15.
In addition to the testimony of Dr. Anderson, Dkt. 244 at
232–33, Dr. Bulun opined that a benefit of physicians having
admitting privileges is “to ensure that the practicing physicians
are appropriately qualified, trained and competent to practice
in a specific area of medicine or surgery.” 7th Cir. Dkt. 44 at 3.
The Fifth Circuit agreed, stating that the “requirement that
physicians performing abortions must have hospital admitting
privileges helps to ensure that credentialing of physicians
beyond initial licensing and periodic license renewal occurs.”
44 No. 15-1736
Abbott I, 734 F.3d at 411.
iii. Accountability and peer review
Finally, in addition to Wisconsin’s experts and Dr. Bulun,
plaintiffs’ own expert witness, Dr. Douglas W. Laube, a
Professor of Obstetrics and Gynecology at the University of
Wisconsin Medical School, and past president of the American
College of Obstetricians and Gynecologists, testified that
accountability and peer review was a benefit to women’s
health promoted by Wisconsin’s admitting-privileges require-
ment. Dkt. 244 at 65–66.6
III
A. Wisconsin’s admitting-privileges requirement does not
6
While the only issue on appeal is the mandate for admitting privileges,
another very important purpose of Wisconsin’s law was the requirement for
ultrasounds. As I pointed out in my earlier concurrence, receiving an
ultrasound before an abortion benefits women in several ways. For starters,
the ultrasound would confirm the fact that she was pregnant. Once she saw
or heard the heartbeat, she would be assured that there is not a mistaken
pregnancy test or a spontaneous miscarriage that was not earlier detected.
Thus she would avoid paying several hundred dollars for an unnecessary
operation. Also, the ultrasound would help reduce medical uncertainty and
disclose any potential complications, such as by enabling a more accurate
assessment of the gestational stage of the pregnancy. The detection of twins
might also give the woman second thoughts. But regardless of whether
certain legislators hoped that an ultrasound would cause the woman to
change her mind, the ultrasound indisputably provides important
information facilitating a more fully informed decision, which cannot be
seen as anything but a benefit to the woman (even if the abortionist might
disapprove of her decision). The obvious benefits flowing from the
ultrasound requirement show that Wisconsin’s law is supported by a
number of rational bases—all centered on the health and welfare of the
woman—in addition to those advanced by the requirement for admitting
privileges.
No. 15-1736 45
impose an Undue Burden on a woman’s ability to choose
abortion.
The record evidence I have cited establishes beyond a doubt
that the Wisconsin State Assembly had a “rational basis to act”
in passing this admitting-privileges law in order to protect the
health and safety of pregnant women who choose abortion in
Wisconsin. See Gonzales, 550 U.S. at 158. Given that
“[r]egulations designed to foster the health of a woman seeking
an abortion are valid if they do not constitute an undue
burden,” Casey, 505 U.S. at 877–78, the next question is whether
this law has the effect of imposing an undue burden on the
ability of women to choose abortion.
The Casey plurality first described the “undue burden” test
as follows: “A finding of an undue burden is a shorthand for
the conclusion that a state regulation has the purpose or effect
of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.” Id. at 877. We said
that, in application, “a court’s proper focus must be on the
practical impact of the challenged regulation and whether it
will have the likely effect of preventing a significant number of
women for whom the regulation is relevant from obtaining
abortions.” Karlin, 188 F.3d at 481. The Supreme Court then
simplified Casey’s description of an undue burden by collaps-
ing the purpose inquiry into the effects test. See Gonzales, 550
U.S. at 158; Currier, 760 F.3d at 460 n.4 (Garza, J., dissenting).
That is the second step of our analysis.
As an intermediate appellate court, we are bound to apply
standards established by the Supreme Court. When this case
was first before us, however, the court majority shifted the
burden to the state to justify the medical necessity of its
admitting-privileges law and characterized the undue burden
46 No. 15-1736
standard for the district court to apply on remand as follows:
The cases that deal with abortion-related statutes sought
to be justified on medical grounds require not only
evidence (here lacking as we have seen) that the medical
grounds are legitimate but also that the statute not
impose an “undue burden” on women seeking abor-
tions. The feebler the medical grounds, the likelier the
burden, even if slight, to be “undue” in the sense of
disproportionate or gratuitous.
Van Hollen, 738 F.3d at 798 (citations omitted). Although I
concurred in that judgment affirming the preliminary injunc-
tion because the law provided no grace period for abortion
doctors to acquire admitting privileges before the law requir-
ing them took effect, I did not then—nor do I today—endorse
the home-brewed “undue burden” standard that the court now
doubles-down on. Simply stated, it finds no basis in Gonzales,
Casey, or any other case law other than that which it created.
See Whole Women’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.
2014) (“Under our precedent, we have no authority by which
to turn rational basis into strict scrutiny under the guise of the
undue burden inquiry.”). By reversing the burdens of proof,
the court also implicitly rejects Mazurek, 520 U.S. at 971, which
requires that the party challenging an abortion restriction bear
the burden of proof. See Abbott II, 748 F.3d at 597.
1. Effect of AMS’s potential closure on the Undue Burden
analysis
In Wisconsin, Planned Parenthood operates abortion clinics
in Milwaukee, Madison, and Appleton. Its abortion providers
at each of those clinics have secured admitting privileges.
Affiliated Medical Services (AMS) operates one abortion clinic
No. 15-1736 47
in Milwaukee. Drs. Dennis Christensen and Bernard Smith
staff AMS and are, at present, the only abortion providers in
Wisconsin to conduct abortions after 18.6 weeks LMP (com-
monly known as “late-term abortions”). Neither has secured
admitting privileges. Consequently, the plaintiffs contend that
AMS risks closure, and that, if that occurs, women seeking
abortions in Wisconsin will face three undue burdens: (1)
significantly increased wait times; (2) required travel to
Chicago or other locations; and (3) no inpatient option for
women seeking late-term abortions in Wisconsin. I address
these arguments in turn.
a. Wait times
Dr. King of Planned Parenthood testified that, if AMS were
to close, it would “overwhelm the capacity of the Planned
Parenthood of Wisconsin clinics to accommodate” the 2,500
women who incurred abortions at AMS in 2013. Dkt. 243 at
147–48. In crediting this testimony, the district court errone-
ously characterized the undue burden standard as requiring
“access to abortion services in Wisconsin.” Van Hollen, 94 F.
Supp. 3d at 989. The Supreme Court’s abortion jurisprudence
carries no intrastate guarantee.
“Although all pre-viability regulations burden a woman’s
ability to obtain an abortion to some degree, the Court [in
Casey] explained that an abortion law is not rendered unconsti-
tutional merely because it operates to make it more difficult or
more expensive to procure an abortion.” Karlin, 188 F.3d 479
(citing Casey, 505 U.S. at 874). Casey rejected the notion that the
abortion right is the right “to decide whether to have an
abortion without interference from the State.” Casey, 505 U.S.
at 875 (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428
U.S. 52, 61 (1976)) (internal marks omitted). Rather, the
48 No. 15-1736
abortion right recognized by Roe is the “right to be free from
unwarranted governmental intrusion” in making the abortion
decision. Id. (citation and internal marks omitted). Ultimately,
Casey summarizes the undue burden standard as follows:
Only where state regulation imposes an undue burden
on a woman’s ability to make this decision does the
power of the State reach into the heart of the liberty
protected by the Due Process Clause.
Id. 874 (citations omitted).
The Supreme Court has held that the constitutional right to
privacy extends to a woman’s right to choose abortion; it has
not held, or even implied, that this right is intrastate in nature.
To be sure, there is no constitutional right to obtain an abortion
at the clinic of one’s choice and at the time of one’s conve-
nience, just as one’s right to free speech does not apply in all
places a protester might desire to complain. In the same way
that a state may reasonably regulate speech if it leaves open
adequate alternative forums for expression, increased wait
times at one clinic do not constitute an undue burden when
other clinics within a reasonable distance remain open for
business. See, e.g., Abbott II, 748 F.3d at 598 (clinic closure was
not undue burden when another clinic was accessible within
150 miles); Women’s Med. Prof. Corp. v. Baird, 438 F.3d 595, 605
(6th Cir. 2006) (same within 45 to 55 miles); Greenville Women’s
Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir. 2000) (same within
70 miles).
AMS is one of four abortion clinics in Wisconsin and two in
Milwaukee. Even if it closed, patrons seeking pre-18.6 week
LMP abortions (approximately 98% of women seeking abor-
tions in Wisconsin) would need to travel a mere 1.3 miles (four
No. 15-1736 49
minutes by automobile) to reach Planned Parenthood’s
Milwaukee clinic instead.7
The plaintiffs argue that the state creates an undue burden
under Casey when a regulation designed to protect the health
and safety of pregnant women decreases the availability of
qualified abortionists. The implications of this argument are
astounding. Taken to its logical end, this argument would
require the state to assume some affirmative duty both to
provide abortion services and to do so in a manner that is
convenient for consumers of abortion and with no regard for
the quality of healthcare professionals that a state’s naturally
occurring marketplace provides. The state bears no such
obligation or duty. Karlin, 188 F.3d at 479 (“Although all pre-
viability regulations burden a woman’s ability to obtain an
abortion to some degree, the Court explained [in Casey] that an
abortion law is not rendered unconstitutional merely because
it operates to make it more difficult or more expensive to
procure an abortion.”) (citation omitted).
While the Supreme Court has limited a state’s ability to
regulate abortions, it has never required a state to establish a
command economy in order to provide them. That the market
may disfavor abortionists is not the state’s concern, but the
7
Statistics indicate that approximately 98% of women seeking abortions in
Milwaukee will not be impacted if AMS closes. In 2012, there were 6,927
abortions reported in Wisconsin. Dkt. 200 ¶ 9. That same year, AMS
performed 131 post-20 week LMP abortions. Dkt. 243 at 29–30. Although
these statistics do not account for the women who incurred abortions after
18.6 weeks LMP, but before 20 weeks LMP, the post-20 week number
accounts for less than 2% of all abortions in Wisconsin. Women seeking the
latest term abortions permitted by law have access to other clinics in
Chicago that are well within a distance held not to be an undue burden, as
I discuss below.
50 No. 15-1736
prerogative of the purveyors of that service. Like any enter-
prise that wishes to be a going concern, entities that wish to sell
abortions must hire practitioners who are able to secure the
necessary credentials on the basis of their professional reputa-
tions and their documented provision of skilled care.8 In this
instance, these credentials include admitting privileges.
The solution to the plaintiffs’ problems is that they find
more qualified doctors, not that the state relax—or that we
strike down as unconstitutional—precautions taken by the
state to protect the health and safety of pregnant women who
have chosen to abort their pregnancies. See Casey, 505 U.S. at
875 (rejecting the notion that the abortion right is the right “to
decide whether to have an abortion without interference from
the State”). Lest there be any doubt, Wisconsin labors under no
8
The court refers to a few hospitals that require doctors to have treated a
certain number of patients there in order to obtain admitting privileges.
Other hospitals might give admitting privileges to doctors who demon-
strate competence in the particular procedure that the doctor seeks to
perform. Of course, a hospital that requires delivering 100 live babies in the
previous two years would not give the AMS doctors admitting privileges
because, as the court observes, “delivering live babies is not what abortion
doctors do.” And as the court also noted when discussing the very low
death rate for women who undergo abortions, the study cited measured
long-term mortality rates “rather than death resulting from an abortion.”
However, to their credit, the Planned Parenthood doctors at the other three
abortion clinics in Wisconsin have apparently demonstrated sufficient
competence in medical procedures, perhaps even delivering live babies, to
qualify for and to obtain the statutorily required admitting privileges. For
women considering abortion, that credential that distinguishes them from
AMS is worth noting. Although the court implies otherwise, it is safe to say
that the Planned Parenthood doctors will not depend on the “rare” abortion
complication to obtain a sufficient volume of hospital work to maintain
their admitting privileges.
No. 15-1736 51
compulsory receivership that obligates it to intervene if the
market fails to provide qualified abortionists within its
boundaries. State inaction is not state action.
In short, there is simply no basis for us to disrupt the
market for abortionists by interjecting ourselves: their abilities
to qualify for admitting privileges, like “[t]he independent
decisions of private hospitals[,] have no place in our review of
state action under the Constitution.” Currier, 760 F.3d at 460
(Garza, J., dissenting) (citation and footnote omitted).
b. Required travel and availability of late-term abortions
Consumers who live near the border of two states tend to
shop at the closest destination, regardless of whether they
reside in that state. Disregarding this routine assumption,
plaintiffs argue that requiring women seeking abortion to
travel outside the state to obtain late-term abortions creates an
undue burden. Surprisingly, this argument finds some basis in
the Fifth Circuit’s recent decision in Jackson Women’s Health
Organization v. Currier, 760 F.3d 448, 457 (5th Cir. 2014), where
the court held that “the proper formulation of the undue
burden analysis focuses solely on the effects within the
regulating state.” However, our precedent squarely disagrees
with Jackson: “the undue-burden standard must be applied . .
. to the nation as a whole, rather than one state at a time.” A
Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684,
688 (7th Cir. 2002).
Turning towards distance rather than towards the gover-
nor’s mansion, Chicago is approximately 93 miles from
Milwaukee—or a one hour and forty minute drive. The Fifth
Circuit recently held that Texas’s admitting-privileges law did
not impose an undue burden on a woman’s right to choose
52 No. 15-1736
abortion because “travel of less than 150 miles for some women
is not an undue burden under Casey.” Abbott II, 748 F.3d at 598
(citation omitted). Before Abbott II, the Sixth Circuit similarly
concluded that there was no undue burden under Casey where
one of two Ohio clinics to conduct 18–24 week abortions was
closed due to lack of a transfer agreement with a local hospital,
even when the remaining clinic was located over 200 miles
away. See Baird, 438 F.3d at 599, 605. Consistent with these
authorities, it is well within the scope of Newman to conclude
that the 93-mile trip from Milwaukee to Chicago to obtain an
abortion does not impose an undue burden on a woman’s
ability to choose abortion. 305 F.3d at 688.
2. Even if the undue burden standard applied to the
market availability of abortion doctors, the AMS abortionists
made minimal efforts to obtain admitting privileges.
When this case was before us on the preliminary injunction,
I asked plaintiffs’ counsel at oral argument about the status of
the plaintiffs’ applications for admitting privileges at Wiscon-
sin hospitals. Counsel was unable to confirm whether any
doctors servicing the four abortion clinics in Wisconsin
possessed admitting privileges, nor did she know the status of
any pending applications by her clients to obtain them.9
i. Planned Parenthood’s efforts to obtain admitting privileges
We know more now. At least six Planned Parenthood
9
Of course, I recognize that, at the preliminary injunction stage, it was in
counsel’s clients’ best interests for her to be non-responsive to my question
because if she had informed us that some of her clients already possessed
admitting privileges, some of the clinics would likely have remained open
even in light of the law’s immediate effect, and we may have been less
likely to affirm the injunction entered by the district court.
No. 15-1736 53
abortion doctors—Dr. Susan Pfleger, Dr. Kathy King, and
pseudonymous plaintiffs P1, P2, P3, and P5—all of whom did
not have admitting privileges when this lawsuit was filed, have
subsequently obtained them. See Van Hollen, 94 F. Supp. 3d at
988–89 . These individuals put forth sufficient efforts to obtain
admitting privileges and were successful, proving that obtain-
ing admitting privileges is not an insurmountable obstacle,
even for abortion doctors.
ii. AMS’s efforts to obtain admitting privileges
The same cannot be said of Drs. Christensen and Smith.
Milwaukee has over two dozen hospitals,10 yet Dr. Smith only
attempted to apply for admitting privileges at one hospital
(and had the AMS manager send an inquiry email to another).
Dr. Christensen (who had admitting privileges for decades
before entering semi-retirement) attempted to apply for
admitting privileges at two hospitals, but did not attempt to
satisfy their informational requests. In the words of the district
court, these “efforts” demonstrate that both doctors “fail[ed] to
exhaust all opportunities” to obtain admitting privileges. Id. at
987. I agree with that assessment. Moreover, while both
doctors were savvy enough to obtain counsel for the purpose
of initiating this lawsuit, neither did so to assist in their
acquisition of the admitting privileges this lawsuit seeks to
invalidate. Dkt. 211 at 48 (Dr. Smith); Dkt. 226 at 45 (Dr.
Christensen). Despite plaintiffs’ arguments to the contrary,
indifference towards the law by abortion providers that results
in an abortion clinic’s potential closure does not create an
10
See Discover Milwaukee - Metro Milwaukee Hospitals,
http://www.discovermilwaukee.com/healthcare-and-fitness/metro-milw
aukee-hospitals/ (last visited Nov. 12, 2015).
54 No. 15-1736
undue burden.
IV
I regret that today’s decision marks the latest chapter in our
circuit’s continued misapplication of the Supreme Court’s
abortion jurisprudence. By a majority of one, the court has
eliminated a measure that Wisconsin’s elected officials have
enacted to protect the health and safety of women who choose
to incur an abortion. There is no question that Wisconsin’s
admitting-privileges requirement furthers the legitimate,
rational basis of protecting women’s health and welfare.
Among other benefits, the requirement promotes continuity of
care and helps to ensure that abortionists are properly
credentialed and qualified. It also works in tandem with
Wisconsin’s ultrasound requirement to facilitate informed
decision-making on the parts of doctor and patient alike. Nor
is there any indication that the requirement would pose a
substantial obstacle to women’s ability to access abortion
providers in their area. As Planned Parenthood’s successful
applications for admitting privileges demonstrate, the hospitals
of Wisconsin are perfectly willing to grant admitting privileges
to qualified physicians who perform abortions in their state.
Because Wisconsin’s admitting-privileges requirement has the
rational basis of promoting the health and safety of pregnant
women who have decided to incur an abortion, and because it
does not impose an undue burden under Casey, I dissent.