738 F.3d 786 (7th Cir. 2013), 13-2726, Planned Parenthood of Wisconsin, Inc. v. Van Hollen

Docket Nº:13-2726.
Citation:738 F.3d 786
Opinion Judge:POSNER, Circuit Judge.
Party Name:PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Plaintiffs-Appellees, v. J.B. VAN HOLLEN, Attorney General of Wisconsin, et al., Defendants-Appellants.
Attorney:Susan M. Crawford, Attorney, Tamara B. Packard, Attorney, Lester A. Pines, Attorney, Cullen Weston Pines & Bach LLP, Madison, WI, Laurence Jacques Dupuis, Attorney, American Civil Liberty Union of Wisconsin, Milwaukee, WI, Roger K. Evans, Attorney, Planned Parenthood Federation of America, Legal ...
Judge Panel:Before POSNER, MANION, and HAMILTON, Circuit Judges. MANION, Circuit Judge, concurring in part and in the judgment.
Case Date:December 20, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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738 F.3d 786 (7th Cir. 2013)

PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Plaintiffs-Appellees,

v.

J.B. VAN HOLLEN, Attorney General of Wisconsin, et al., Defendants-Appellants.

No. 13-2726.

United States Court of Appeals, Seventh Circuit.

December 20, 2013

Argued Dec. 3, 2013.

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Susan M. Crawford, Attorney, Tamara B. Packard, Attorney, Lester A. Pines, Attorney, Cullen Weston Pines & Bach LLP, Madison, WI, Laurence Jacques Dupuis, Attorney, American Civil Liberty Union of Wisconsin, Milwaukee, WI, Roger K. Evans, Attorney, Planned Parenthood Federation of America, Legal Action for Reproductive Rights, Talcott Camp, Attorney, American Civil Liberties Union, Reproductive Freedom Project, New York, NY, Carrie Y. Flaxman, Attorney, Planned Parent Federation of America, Washington, DC, for Plaintiffs-Appellees.

Clayton P. Kawski, Attorney, Maria S. Lazar, Attorney, Daniel P. Lennington, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants-Appellants.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

On July 5 of this year, the Governor of Wisconsin signed into law a statute that the Wisconsin legislature 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 admitting 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 becomes 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 (these days called

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" hospitalists" ), and all Wisconsin abortion clinics already have transfer agreements with local hospitals to streamline the process. A hospital that has an emergency room is obliged to admit and to treat a patient requiring emergency care even if the patient is uninsured. 42 U.S.C. § 1395dd(b)(1).

Planned Parenthood of Wisconsin and Milwaukee Women's Medical Services (also known as Affiliated Medical Services)— the only entities that operate abortion clinics in Wisconsin— filed suit (joined by two physicians affiliated with these clinics, whom we'll largely ignore in an effort to simplify our opinion) challenging the constitutionality of the new statute under 42 U.S.C. § 1983, which provides a tort remedy for violations of federal law by state employees. The suit was filed promptly on July 5 and simultaneously with the filing the plaintiffs moved in the district court for a temporary restraining order. The court granted the motion on July 8 and later converted it to a preliminary injunction against enforcement of the statute pending a trial on the merits. The sparse evidentiary record ends on August 2, the day the preliminary injunction was granted. The defendants— the Attorney General of Wisconsin and other state officials involved in enforcing the statute (we refer to the defendants collectively as the " state" )— have appealed. 28 U.S.C. § 1292(a)(1).

Discovery is continuing in the district court, but the judge has stayed the trial (originally set for November 25) pending resolution of this appeal. The stay had been requested by the defendants, and in granting it the judge explained that " (1) the stay will not prejudice plaintiffs; and (2) a stay may simplify or clarify the issues in question and streamline the case for trial. Except for the lingering uncertainty (which will not be eliminated until this matter is resolved through final appeal), plaintiffs are not prejudiced by the stay now that an injunction is in place. As plaintiffs acknowledge, additional time may allow them to develop the record as to their ability to obtain admitting privileges at local hospitals. Furthermore, the Seventh Circuit's review of the preliminary injunction order will likely provide guidance to this court and the parties on the law and its application to the facts here. If anything, it would be inefficient for this court to address the merits of plaintiffs' claims until obtaining this guidance from the Seventh Circuit" (citations omitted).

All we decide today is whether the district judge was justified in entering the preliminary injunction. Evidence presented at trial may critically alter the facts found by the district judge on the basis of the incomplete record compiled in the first month of the suit, and recited by us.

Although signed into law on July 5, a Friday, the statute required compliance— the possession of admitting privileges at a hospital within a 30-mile radius of the clinic at which a doctor performs abortions— by July 8, the following Monday. So there was only the weekend between the governor's signing the bill and the deadline for an abortion doctor to obtain those privileges. There was no way the deadline could have been met even if the two days hadn't been weekend days. It is unquestioned that it takes a minimum of two or three months to obtain admitting privileges (often a hospital's credentials committee, which decides whether to grant admitting privileges, meets only once a month), and often it takes considerably longer. Moreover, hospitals are permitted rather than required to grant such privileges.

All seven doctors in Wisconsin who perform abortions but as of July 8 did not have visiting privileges at a hospital within a 30-mile radius of their clinic applied for

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such privileges forthwith. But as of the date of oral argument of this appeal— five months after the law would have taken effect had it not been for the temporary restraining order— the application of one of the doctors had been denied and none of the other applications had been granted. Had enforcement of the statute not been stayed, two of the state's four abortion clinics— one in Appleton and one in Milwaukee— would have had to shut down because none of their doctors had admitting privileges at a hospital within the prescribed 30-mile radius of the clinics, and a third clinic would have lost the services of half its doctors. The impossibility of compliance with the statute even by doctors fully qualified for admitting privileges is a compelling reason for the preliminary injunction, albeit a reason that diminishes with time. There would be no quarrel with a one-year deadline for obtaining admitting privileges as distinct from a one-weekend deadline, and if so that might seem to argue for a one-year (or even somewhat shorter) duration for the preliminary injunction. But there should be no problem in getting the case to trial and judgment well before July 8, 2014. The plaintiffs are ready to go to trial. The defendants contemplate very limited discovery. Furthermore there are more reasons for the preliminary injunction than just the impossibility of compliance with the statute within the deadline set by the statute.

The stated rationale of the Wisconsin law is to protect the health of women who have abortions. Most abortions— in Wisconsin 97 percent— are performed in clinics rather than in hospitals, and proponents of the law argue that if a woman requires hospitalization because of complications from an abortion she will get better continuity of care if the doctor who performed the abortion has admitting privileges at a nearby hospital. The plaintiffs disagree. They argue that the statute would do nothing to improve women's health— that its only effect would be to reduce abortions by requiring abortion doctors to jump through a new hoop: acquiring admitting privileges at a hospital within 30 miles of their clinic. No documentation of medical need for such a requirement was presented to the Wisconsin legislature when the bill that became the law was introduced on June 4 of this year. The legislative deliberations largely ignored the provision concerning admitting privileges, focusing instead on another provision— a requirement not challenged in this suit that a woman 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 (such as a colonoscopy, or various arthroscopic or laparoscopic procedures), and even if performed when the patient is under general anesthesia, and even though more than a quarter of all surgery in the United States is now performed outside of hospitals, Karen A. Cullen et al., " Ambulatory Surgery in the United States: 2006," Centers for Disease Control and Prevention: National Health Statistics Reports No. 11, Sept. 4, 2009, p. 5, www. cdc. gov/ nchs/ data/ nhsr/ nhsr 011. pdf (visited Dec. 19, 2013, as were the other websites cited in this opinion), is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed. That is true even for gynecological procedures such as diagnostic dilation and curettage (removal of tissue from the inside of the uterus), hysteroscopy (endoscopy of the uterus), and surgical completion of miscarriage (surgical removal of fetal tissue remaining in the uterus after a miscarriage,

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which is to say a spontaneous abortion), that are medically similar to and as dangerous as abortion— or so at least the plaintiffs argue, without contradiction by the...

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