Wisconsin Admitting Privileges Trial in Federal Court

From May 27 through May 30, 2014, Judge William Conley heard testimony in his federal court room on Wisconsin Act 37, a law which requires abortion providers to have admitting privileges at a hospital within 30 miles of the abortion clinic.  Act 37 was signed into law in July of 2013 by Governor Scott Walker and was immediately challenged by Planned Parenthood of Wisconsin (PPWI), Affiliated Medical Services (AMS), and various other parties. Judge Conley enjoined the law and called for a trial to determine its constitutionality.

Plaintiffs called many witnesses including three abortionists, several physicians, an abortion clinic manager and sociologists.  The main themes of the testimony were the following:

• While PPWI has obtained admitting privileges for all of its abortionists, AMS has tried for months and been unable to obtain them.
• If AMS is forced to close, PPWI will not be able to absorb the AMS patients nor have the infrastructure to take over AMS.
• Women will have to travel to Chicago for the late-term abortions performed only by AMS.   Finding and affording transportation will be hardest on low income women.
• Complications are very uncommon and PPWI and AMS already have procedures for transporting a woman to a hospital if necessary.  Admitting privileges will not improve care for women.
• It is more and more difficult to find abortionists and requiring admitting privileges makes it even harder.   One of the reasons is the harassment endured by abortionists from protesters who come to their homes and neighborhoods.
• PPWI performed 3,300 abortions in 2013 at its three abortion clinics.  AMS performed 2,500 that same year.  PPWI requires ultrasound prior to abortion.

Witnesses for the defendants included physicians and a woman who suffered abortion complications.  Some of their testimony included the following:

• Abortion complications are under-reported because the reporting system is basically voluntary.  Maternal deaths from abortion may be under-reported by 50%. 
• Admitting privileges ensure continuity of care for women which can be critical in terms of time and lead to better patient outcomes and safety.
• Hospital credentialing is protective of patients, not providers.
• Physician to physician communication improves outcomes.
• Admitting privileges allow a hospital to discipline a physician who did not provide adequate care for a transported patient.
• National Abortion Federation Guidelines exhibited on its website a few years ago stated that doctors should be able to admit patients to a hospital no more than 20 minutes away from the abortion clinic.

Judge Conley listened intently to all testimony and asked numerous questions.  At one point, he told the CEO of PPWI that her staffing concerns exist right now and it is part of a CEO’s job to address concerns.  He admonished AMS and its attorneys for what he perceived as lack of effort in acquiring admitting privileges.  Conley stated that if they languished to embellish their challenge, it was a very bad decision.   Federal law allows a court to impose requirements for information on hospitals and he was not asked.   

After testimony was completed, Judge Conley stated “this is what I see the arguments to be.”

There are legal theories and factual disputes from the Plaintiff which rely on case law. Protecting the right to abortion and the burden of restrictions present constitutional concerns.  Plaintiffs focus that the reasons for passage of the law were to make obtaining abortions more difficult.  It was brought up that other outpatient clinics do not require admitting privileges.

The State relied on a rational basis.  The law is for protecting the woman and ensuring that physicians have admitting privileges in the rare case of an event.

Assuming the rational argument was articulated and demonstrated, what are the burdens on the woman?  The Plaintiff argues there are undue burdens and this is sufficient to apply what the marginal benefits are of having admitting privileges vs. the burdens.

The State argued that you don’t need to weigh the benefits vs. burdens, but instead consider whether the law will reduce or significantly reduce the ability for women to obtain an abortion.

The Court remains troubled with the inflexibility of the law.  There is no grace period, no appeal right, no mechanism to bring a new physician on board unless they have admitting privileges, all of which make it difficult to recruit doctors which adds another burden.

A decision is expected sometime this summer.   Regardless of the outcome, both sides are expected to appeal if they lose.