Wisconsin federal judge extends hold on restrictive abortion law

Controversial bill passed last month requires state's abortion providers to have admitting privileges at nearby hospitals
 Scott Walker
Wisconsin governor Scott Walker's signed the Republican-backed restrictive abortion bill into law last month. Photograph: Andy Manis/AP

A federal judge has refused to lift a temporary hold on a new requirement that Wisconsin abortion providers have admitting privileges at nearby hospitals.

US district judge William Conley issued his stay last week, three days after Planned Parenthood of Wisconsin and Affiliated Medical Services filed a lawsuit alleging the requirement would force two abortion clinics in Appleton and Milwaukee to close. He declined a motion to lift the order on Wednesday.

Conley's order affects only those two clinics and will dissolve after two weeks. The groups are seeking a preliminary injunction that would invalidate the requirement through the end of a trial. Conley indicated he planned to rule on the injunction before the stay ends and scheduled the trial for 25 November.

Republicans who control the state legislature passed a bill setting up the requirement last month in nine days, without any Democratic support. Republican governor Scott Walker signed it into law on 5 July.

The law also requires women to undergo an ultrasound before getting an abortion. That mandate remains in effect.

Planned Parenthood and Affiliated Medical Services filed their lawsuit the day Walker signed the bill. Planned Parenthood said the admitting privileges requirement would force its Appleton clinic to close because providers there lack admitting privileges at local hospitals. Affiliated Medical Services made the same contention about its Milwaukee clinic.

The groups argued women would have to travel hundreds of miles further to obtain abortions at Planned Parenthood facilities in Madison and Milwaukee, where providers have admitting privileges. The organizations also alleged the law unconstitutionally restricts the availability of abortions in Wisconsin, violates the US constitution's due process guarantee and unconstitutionally treats abortion providers differently than other doctors.

Attorneys with the state Department of Justice countered the requirement is meant to ensure continuity of care if a woman develops complications following an abortion. They said driving further to obtain an abortion isn't an undue burden.

Conley said at Wednesday's hearing the state must prove a legitimate government interest in imposing the requirement. The law's challengers, meanwhile, must show the requirement creates an undue burden on women seeking abortions.

Wisconsin is one of several states where Republicans have advanced such a mandate. It was part of the sweeping legislation that Texas lawmakers approved just last week after weeks of protests. In Mississippi, the only abortion clinic still operating is battling to stay open because of new facility requirements and because of a requirement that doctors have privileges at a local hospital.

Carrie Flaxman, an attorney with Planned Parenthood Federation of America, argued losing the two Wisconsin clinics would create delays in scheduling abortions at the state's remaining facilities in the state as they cope with more demand. The closure of the Affiliated Medical Service clinic in Milwaukee would effectively end abortions after 19 weeks of pregnancy in the state because no other facility offers them after that point, she said.

She also said that northern Wisconsin women seeking an abortion might have to stay in a hotel in Madison or Milwaukee, take more time off from work or find extended child care.

No other Wisconsin doctors are subject to the requirement, no physicians asked for it and doctors seldom follow their patients to a hospital, Flaxman said. Only a fraction of women who undergo abortions develop complications, usually after they have left the clinics, she added.

Assistant attorney general Dan Lennington began his arguments by declaring the case "a slam-dunk".

"The attorney general's office seems to think everything is a slam-dunk," the judge, an Obama appointee, shot back. Lennington works for Wisconsin attorney general JB Van Hollen, a Republican.

Lennington insisted the requirement ensures a higher level of care because an abortion provider can explain what happened to the patient.

But when Conley challenged him to produce any examples of problems arising from patients moving between doctors without consultation between the physicians he couldn't produce any.

"Surely you have to come forward with proof that this does provide a benefit for maternal health," Conley said.

Lennington also noted that women already must wait 24 hours before obtaining one in Wisconsin so an extra three hours in the car should not constitute an undue burden. Appleton and Affiliated Medical Services doctors can apply for hospital admitting privileges, he added.

"This is a process that can start with a phone call and minimal paperwork," Lennington said.

Flaxman said the providers have applied, but the process generally takes months.