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A withering dissent demonstrates why an admitting-privilege requirement is sound law

by | Dec 1, 2015

By Dave Andrusko

 Judge Daniel Manion

Judge Daniel Manion

Last week NRL News Today wrote about a split 7th Circuit Court of Appeals panel decision that overturned Wisconsin’s law requiring abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic.

I’d like to revisit the 2-1 decision for two important reasons.

Such a requirement is part of the Texas law the Supreme Court has agreed to hear. Thus the decision will be one the justices will carefully read.

In addition, the 7th Circuit majority opinion written by Judge Richard Posner, is being heralded as some sort of definitive, last-word pronouncement that is so astonishingly brilliant proponents ought to just beat their legal swords into plowshares and retire to their homes.

In fact, Posner’s argument is extremely weak as the withering dissent by Judge Daniel Manion makes abundantly clear. The 25-page dissent, which starts on page 30, should be read in its entirety; it’s that good.

In lieu of that, let we highlight some of the many crucial distinctions Judge Manion makes which the Supreme Court should heed as it considers Texas’ H.B. 2.

First, as Judge Manion highlights repeatedly, Judge Posner misreads the legal standard by which Wisconsin’s Act 37 ought to be judged.

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. …

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 imposing an undue burden on a woman’s ability to make the decision to chose abortion. Here, the court [majority] sets this burden of proof 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.

There is a rational basis for the admitting-privileges requirement, as Judge Manion patiently explains in great detail, and by no means does Act 37 impose an undue burden.

Manion begins by observing that at least 19 women who’d sought abortions at Planned Parenthood clinics in Wisconsin “subsequently received hospital treatment for abortion-related complications” between 2009 and 2013. “Safety is not a negligible concern in any field of healthcare,” Manion writes. “Abortion–which is subject to less regulatory oversight than almost any other area of medicine–bears no exception.”

supremecourt063He goes on to cite Supreme Court decision after Supreme Court decision in which the justices recognize 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.”

Manion then systematically illustrates why the admitting privileges requirement furthers Wisconsin’s interest in patient (women’s) safety. He starts by hoisting the opposition of various medical authorities to Act 37 on their own petard.

In 2003, The American College of Surgeons (joined by the American Medical Association and the American College of Obstetricians and Gynecologists) issued a statement listing several “core principles.” One of those was admitting privileges at a nearby hospital for physicians performing office-based surgery.

Manion keenly observes

Perplexingly, in this case, the AMA and ACOG have joined 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 convenient, 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.

He offers many other reasons why the admitting-privilege requirement bolsters women’s safety, including continuity of care (which pro-abortionists airily dismiss) and (quoting another circuit panel’s decision) “credentialing of physicians beyond initial licensing and periodic license renewal.”

But does Act 37 constitute an “undue burden”? Here Manion is absolutely devastating. Most abortionists plying their trade in Wisconsin’s PPFA were able to secure admitting privileges.

So what is the “undue burden”? That two abortionists at another abortion clinic, which performs late abortions, were not able to. Thus a greater “burden” on PPFA and, by extension, women seeking abortions.

Manion touches on something that is part of other court challenges to similar state laws: the notion that if there is not an intra-state abortion clinic convenient to the woman, it represents an undue burden.

He drily summarizes how haphazardly two abortionists from Affiliated Medical Services (AMS) in Milwaukee had tried to secure admitting privileges. Not exactly a full-court press

Manion notes that AMS has four abortion clinics in Wisconsin, two in Milwaukee. Even if AMS closed, approximately 98% of women in Wisconsin seeking abortions (pre-18.6 weeks) would need to travel “a mere 1.3 miles” to reach PPFA’s Milwaukee clinic.

How about obtaining a late-term abortion?

Manion writes, “Turning toward distance rather than towards the governor’s mansion, Chicago is approximately 93 miles from Milwaukee–or a one hour and forty minute drive.” Other circuit courts, Manion observes, found that much greater distances did not constitute an “undue burden.”

Judge Manion’s conclusion says it all:

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.