Civil Liberties

Wisconsin Law Requiring Hospital Privileges for Abortion Doctors Ruled Unconstitutional

Admitting privileges rule can't "be taken seriously as a measure to improve women's health," says federal appeals court.


Michael @ NW Lens/Flickr

A law requiring Wisconsin abortion doctors to have a formal relationship with a nearby hospital "cannot be taken seriously as a measure to improve women's health," said a federal appeals court Monday, ruling the requirement unconstitutional in a 2-1 decision.

The law, passed in 2013, says that any physician who performs abortions must have admitting privileges at a hospital within 30 miles of their practice. Admitting privileges allow outpatient doctors to admit and treat patients at the agreeing hospital if necessary.

Supporters say the admitting-priveleges law ensures continuity of care should complications arise during an abortion procedure. But opponents point out that such privileges are unncessary since hospitals will admit emergency patients regardless; they suggest the law's true intent is to force abortion clinics to close. 

Almost immediately after Wisconsin Gov. Scott Walker approved the law, the American Civil Liberties Union and Planned Parenthood of Wisconsin challenged it on behalf of Milwaukee's Affiliated Medical Services, an abortion clinic that would have been forced to close under the new mandate. They were successful in getting a district court to initially block the law and, last March, hold it unconstitutional. But the state appealed, sending the case to the 7th Circuit Court of Appeals in Chicago. 

Agreeing with the lower court, the appeals court held Monday that any supposed medical benefit from the law was "nonexistent." Writing for the majority, Judge Richard Posner—a Republican appointed by Ronald Reagan—noted that "any doctor (in fact any person) can bring a patient to an emergency room to be treated by the doctors employed there," no special privileges needed. 

Moreover, all Wisconsin abortion clinics are required by law … 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.

Posner also pointed out that "complications from an abortion are both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges."

In addition, Wisconsin physicians who perform other outpatient services—even those with much higher complication rates than abortion—are not required to have admitting privileges ar a local hospital. This is even the case for physicians performing procedures medically similar to abortion, such as the dilation and curettage (D&C) surgery used on women with incomplete miscarriages.  

"Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure—abortion—that rarely produces a medical emergency," Posner concluded. He was joined by Judge David Hamilton, a Democrat appointed by President Obama.

Judge Daniel Manion, another Republican Reagan-appointee, dissented. Manion wrote that there is "no question that Wisconsin's admitting-privileges requirement furthers the legitimate, rational basis of protecting women's health and welfare." 

The Wisconsin law mirrors others around the United States; according to the Guttmacher Institute, 14 states have passed similar requirements for abortion doctors—many of which are currently tied up in legal challenges. Earlier this month, the U.S. Supreme Court agreed to hear a challenge to an admitting-privileges law for abortion doctors in Texas.