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. 

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99 responses to “Wisconsin Law Requiring Hospital Privileges for Abortion Doctors Ruled Unconstitutional

  1. 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,”

    It’s actually sort of charming that anyone anywhere would seriously try to argue that abortion restrictions took the woman’s wellbeing into account at all.

    1. Now, Hugh. Everyone knows abortion is just terrible for a woman’s well-being. All abortion restrictions are designed to help her.

      1. Is saving her ever-lasting soul not helping her?

        1. Humans do not have souls. That’s something the church invented to control people.

          1. So, you’re saying that James Brown wasn’t human? Because you can’t be saying he didn’t have soul.

            1. No Zippy.
              I did not state that James Brown was not human.
              I stated that humans do not have a “soul” whatever that means.

              1. Seems some of them don’t have a sense of humour either.

                1. Probably lost it with his soul.

              2. And you know this how?

          2. Yours definitely will, moron.

        2. Saving her soul is not your responsibility. Possibly putting her health at risk to coerce her to view things your way is just sick.

    2. I join Hugh in urging the President to appoint and Congress to approve Kermit Gosnell for Surgeon General.

    3. I don’t know how you can tie abortions to women’s health either way. If you take the health claim out of it then you don’t have much to work with even including not restricting abortions. It becomes an elective procedure.

      Let’s say Wisconsin voted to ban Botox procedures without admitting procedures. Not that I would agree with that. Would that be overturned? I highly doubt it. IMO they only got to this decision by some reasoning that abortions effect women’s health positively. Whether any number of laws restrict free association, or burden it hasn’t been relevant for a long time.

      If they could apply that all the time we would be striking a lot of laws from the books. I wish they would, but in this case I think they just like abortion, and so reasoned backwards from there.

      1. Back in the 70s our Office Feminist was always saying, “If men could get pregnant, abortion would be a sacrament”.

        Well, they still can’t, but it is.

        1. Homp,

          Like everything religious, any given sacrament is meaningless, or barely important to some. And the old Office Feminist was right in way, but also wrong, as the current switcharoo from outlawed everywhere was dictated by a bunch of old guys wearing dresses for their official deciding ceremonies, way back in the thirties.

          I mean, gosh, just because she can vote, and work in higher and higher status jobs, she now thinks that we guys are going to let women make any of these big decisions? I mean…oh, hi there Hillary; hi there, Kagan. And yeah, I see you over there, Ginsberg.

      2. Let’s say Wisconsin voted to ban Botox procedures without admitting procedures.

        I had to take my dad to several dermatologists in two different states for treatment and checkups on a tiny, benign skin tumor. Every one of them had admitting privileges at local hospitals. A lot of medical specialists carry admitting privileges even if the chances of them ever performing a procedure outside of their office are infinitesimally small, and even if they are not required by law to do so. Abortion can’t be regulated in the same manner as any/every other medical specialty though, because SCOTUS hasn’t decided that medical procedures per se are a constitutional right.

    4. So the minute abortion was legalized, a framework was set in place to establish standards…extrication so, if you will…that established what would and would not be considered a safe abortion. They were put in place because the illegal abortions were deemed dangerous.

      So are you telling me that we should go back to the days when anybody could perform an abortion? Forget having licensed doctors or even clinics performing them. Let’s let anybody set up an abortion clinic and have absolutely zero oversight or restrictions (like, I don’t know, only licensed medical practitioners can perform them) at all? Is that what you want? Because I don’t see any of you griping that the current system in place is burdensome. It only happens when Team Red wants to make the clinics have admitting privileges.

      1. I think anybody should be able to set one up. I would make licensing a voluntary but not necessary process.

        My only issue is that the court’s libertarian streak seems to come and go depending on what they feelz.

        1. Technically, it has nothing to do with “feelz” and everything to do with the nonsense of “strict scrutiny” vs “intermediate scrutiny” vs “rational basis,” but it definitely does shake out wrong.

      2. To summarize:

        “They’re touching our ‘bortions!! RAAAAAAGGE!”

      3. I think it’s laughable that Marxist democrats, who favor cramming endless regulation down our throats, somehow have a complete carve out for abortion. Where anything goes.

    5. To hell with the sorry ass woman. How about the well being of the child? Moron.

  2. Interesting that the Appeals Court would have chosen to rule on this in advance of the Supreme Court’s ruling in Whole Woman’s Health v. Cole.

  3. Writing for the majority, Judge Richard Posner?a Republican appointed by Ronald Reagan?

    Why add that part?

    1. Because it means that judge is hella old.

    2. To preempt the inevitable “evil liberal activist judge who lacks understanding of theology and geometry” remarks?

      1. Bush Sr. appointed David Souter…

        Seems more an appeal to teamthink than anything else.

    3. Why add that part?

      I see that a lot in stories where they mention a judge, they mention who appointed him. Reason isn’t the only place I have seen it.

      From the same article:

      He was joined by Judge David Hamilton, a Democrat appointed by President Obama.

      1. I dislike that by anyone – it turns every single decision into some sort of political game, rather than – “what is the basis of the ruling?” “Is this something that can be more widely applied?” etc.

        I would hope Reason could manage to avoid falling into the ordinary journalist traps.

        1. Wisconsin Tried to Tether Abortion Doctors to Local Hospitals and You Won’t Believe What Happened Next

          1. Did it involve some weird trick?

        2. Are you suggesting that court rulings are unlikely to be political? It’s relevant information. It’s not like they don’t also explain the ostensible basis of the ruling.

    4. “Why add that part?”
      Why not? It is a true statement. AKA a fact.

      1. He has 2 legs is a fact also, but it wasn’t included in the story. Obviously the question was why was it relevant.

      2. So would be what he had for dinner last Thursday, how tall he is, what his favorite color is… so what?

        1. Because judges often act ideologically, and when they act counter to expectations, it might mean that the issue at hand contained a measure of egregiousness. Or not. Let them mention their favorite color too. Who gives a fuck. Why are you worse off with more information?

      3. There are a lot of true statements that are not germane to the story. You are obviously a moron.

    5. Because rat fucking teabagger didn’t flow as well.

      1. Do you kiss your mother with that filthy mouth?

    6. Because the writer is an asshole

  4. 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[t] 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.

    That should have been the end for the law. Two similar procedures being treated differently under the law.

  5. Check your privilege

      1. All that squinting has to be indicative of some deeper vision problem. When was your last eye exam?

        1. I’ll have you know I paid UUUUGE money to get the finest laser eye sculpting in 2007 – no way I was going to go fight in a desert wearing glasses again.

  6. the appeals court held Monday that any supposed medical benefit from the law was “nonexistent.”

    If only they would apply that scrutiny to every other regulation on the books . . . .

    1. I noticed that too. I was trying to figure out a way for Uber or Lyft to spin itself as an abortion services company– like how they might get called to drive a woman to planned parenthood, and therefore restrictions on Uber are restrictions on abortion.

      1. But ‘bortions are the sacred right of wymyns!! Uber and Lyft are just gross businesses, probably run by wicked, unreconstructed men! How dare you compare them!

        /progfem derp

    2. Funny that the squealing stops when this type of ruling is handed down. It doesn’t extend to other medical services that require extensive licensure, enhanced regulation and burdensome oversight.

      But it’s more about people getting what they want than being consistent. I’ve sadly become more and more aware of that trend lately.

    3. That is my objection to these so-called reproductive rights cases. In every other instance, the Courts fall back on the Progressive-Era “deference to the Legislature” standard that presumes that no matter how preposterous the justification for a law may be, the Courts must assume that a rational basis exists for it. Under this standard, the Wisconsin law should have survived.

      Apply the level of scrutiny Posner applied in this case to every law that impinges on personal liberty and autonomy, including liberty of contract and to engage in profitable business, or to none.

  7. I am absolutely sure gun registries and waiting periods would be struck down using the same rationale. Right?

    1. You and RC made my point for me!

      1. The funny thing is I like the ideas of regulations being struck down for any reason but I also hate seeing proggies getting their way especially when the arguments are so blatantly hypocritical. They have such a toxic mix of smug and evil that my desire to eliminate regulations almost takes a back seat to the schadenfreude I feel when their own totalitarian policies are used as a weapon against them.

        I have to admit it would have been more gratifying to see the law upheld just to see them hoisted on their own petard/retard.

        1. Not all pro-choice people are “proggies” or in favor of gun control.

          1. Of course not but this is a pet issue for the proggies and they would have had their agenda damaged using weapons they use against everyone else. I am just admitting that at some level I highly value their suffering.

          2. A lot of the pro-abortion people I regularly come in contact with are pretty silent when it comes to regulatory burdens being put on other medical services and their providers. Even the ones that consider themselves libertarian, anarchist or simply small-government types.

            1. I am consistently against state licensure of medical personnel as well as against all other health-related regulations and consider the AMA and FDA to be among the worst organizations in the country. And of course I am also consistently opposed to any form of gun control whatsoever, including the current federal background check system for all FFL sales.

              1. I never said anything about you.

                And I’d say the overlap in pro-abortion/anti-2A is pretty big. Would you disagree?

              2. It is amazing that after passing all of the requirements for medical school that we then have to worry about passing some state medical exam that may have very little to do with determining the quality of one’s ability, as a physician. After that, they hold that little piece of paper over your head if you are not a good little boy, willing to kiss the backside of all the established doctors, one has to practice with in the hospital. Often times those doctors were practicing inferior medicine. But, politics wins out!

          3. But most are. It comes with the territory of being in favor of killing babies.

    2. People who are not stupid ideologues and appreciate the utility of regulations also tend to prefer that such regulations accomplish some socially beneficial purpose and aren’t entirely duplicitous in intention.

      1. Someday, one of these people will exist. I’m sure of it!

      2. And some people seem to think limiting abortion is a “socially beneficial purpose”. I could easily construct such an argument revolving around the needed birth rates to support our glorious social welfare state. I think the defining characteristic of people who love regulation is it forces other people do what they want them to do but can’t persuade them to do. Everyone has an argument for why their approach to life is “socially beneficial”. Your view of what is socially beneficial is not inherently better than what pro-life people think is beneficial. Once you go down that path you never have a right to complain about what other people are doing to you as long as they somehow have good intentions.

        1. You’re right. Some people think that putting government bureaucrats between women and abortion is socially beneficial. Some people think abortion is equivalent to killing babies, and so banning it is of utmost social concern. And it’s understandable that, since abortion is (for now) a constitutionally protected right, opponents might be tempted to pass laws that ostensibly align with maintaining the right but in reality are designed to interfere with it as much as possible. But it shouldn’t be surprising when courts don’t buy it.

          I prefer the conversation to be about whether allowing or banning abortion is better for society. At least it’s honest, unlike laws that claim to be concerned with women’s health but aren’t actually

          1. Yep just like some people think putting the FDA between their patient and doctor is beneficial. The point of course is someone like you never ever has a right to complain about anything on principal. As long as we can make some utilitarian argument anything goes. This is in effect your position and from that flows the rationalization of almost every evil in human history. Not that I expect you to recognize this.

            1. Everyone’s a utilitarian. People claiming to have access to the moral laws inherent to the universe are the ones you should keep an eye on.

              1. Yeah those people who believe things like free speech and the right to life, liberty, and the pursuit of happiness are the ones to be worried about. Maoist “pragmatists” not so much.

            2. As a side note it is hysterical that you think the people who are a real threat are those who have a sense of right and wrong.

              1. As you have acknowledged, people can deem anything right or wrong.

                1. Of course they can but you think value judgements are illegitimate. So really when the President talks about refusing Syrians being a violation of our “values” you see him as full of it because there are no legitimate values. The only real question is does this benefit more than it hurts and as long as you can tally up enough benefits for a policy anything goes.

                  Does that sum up your view of the world?

                  1. Well, that’s my view of the government. People’s morality need to apply in their everyday lives. You and I shouldn’t interfere with that unless it violates someone else’s rights, person, or property.

                    As an example, are there pros to an FDA-spirited company that is reviewing drugs for use? Yes.

                    Is the current incarnation of the FDA, which is beholden to political pressure more than scientific review, useful? Well, they took 34 years from the discovery of Acetaminophen’s very low overdose threshold to require a label on the medication warning of this reality. Back in 2009 or 2011 or so, an FDA scientific panel unanimously voted to reduce the OTC dose available for acetaminophen and the FDA proper has done nothing.

                    On the flip side, viagra flew through the review and approval process as one of (if not the) fastest drug approvals in history.

                    So, when someone calls for tearing down the FDA, I have to agree as political tiddlywinks is not useful to the nation as a whole – especially when under the guise of safety. However, I will advocate for a suitable drug review board of limited scope to replace it.

                    1. In this particular situation, I would be fine with the law saying that ALL medical practitioners have admitting privileges in nearby hospitals. I’ve seen reports of routine procedures go awry in many types of doctors.

                      If the law cannot be applied to everyone it shouldn’t exist. The government is not here to pick winners and losers – or to hinder or help any specific industry.

                2. And I deem you to be wrong 99% of the time, moron.

  8. Wisconsin Law Requiring Hospital Privileges for Abortion Doctors Ruled Unconstitutional

    If only the courts were so protective of people’s right to property like they’re of abortionists… We would finally achieve Libertopia!

    Agreeing with the lower court, the appeals court held Monday that any supposed medical benefit from the law was “nonexistent.”

    What’s a case of peritonitis compared to the right to kill someone you don’t know?

  9. But opponents point out that such privileges are unncessary since hospitals will admit emergency patients regardless[…]

    Just not as quickly, of course. In the meantime, the dying woman can always pass the time looking at a Time magazine from the year 2011.

  10. “Admitting privileges rule can’t “be taken seriously as a measure to improve women’s health,” says federal appeals court.”

    You know what can’t be taken seriously?

    (a) The idea that the vast majority of abortions have any relation to “women’s health.”

    (b) The idea that a constitutional clause requiring “due process of law” means that abortionists don’t need any hospital affiliation.

    The “pro-choice” crowd projects its own dilemmas onto prolifers. Of course, to the pro-choicer, who think women have an interest in getting abortions, there is a conflict between the interest of the woman and the interest of the child she wants to abort.

    But to the prolifer, there’s no conflict between protecting the child from being aborted and *simultaneously* protecting the woman from the Kermit Gosnells.

    1. For now, getting an abortion is a constitutionally protected right. You can’t restrict a constitutional right for just any arbitrary and dishonestly expressed reason, I’m sure you’ll agree.

      1. “a constitutionally protected right”

        How many legs does a dog have, if you call a tail a leg?

        Take your time, don’t strain your brain.

        1. Thinking in cliches doesn’t take much brainpower.

          1. And you are by far the “greenest” thinker on this board.

      2. No. It is not a “Constitutional” right. Show me were the Constitution says that, you ignorant fool.

  11. i thought at the time that such a law was reasonable, but i agree with the court on the admitting privileges part of it. i don’t care how rare it is, any procedure that could result in need of emergency services should be within a reasonable distance to a hospital. i think that’s reasonable still, even if it’s rare, and even if it obviously has nothing to do with protecting women.

    1. Getting a wart removed can result in needing emergency services. Doesn’t happen often, but it does happen. Should derm clinics where warts are removed be required to be near hospitals?

      1. you can probably separate based on level on risk, but i think you can make the argument that it’s reasonable legally. i wouldn’t rule out being convinced otherwise too. i certainly understand the libertarian point of view is contrary to mine.

  12. And 2 + 2 still = 4, right? It appears that “the courts” got that one right.

  13. Supposedly, the so called “normal delivery” performed in a hospital leads to more “problems”, some fatal, than do abortions performed in proper abortion facility,so I understand.

    1. Only if you don’t consider the death of the fetus to be a problem, you idiot.

      1. I had some cancer cells removed in a simple procedure with no complications. But as I was leaving some “pro-life” goons got in my face over having “murdered” those “human” cells. When I asked them if I had an individual right to control my own bodily functions these parasites began bleating that once the cell division began I was no longer an individual and therefore had waived individual rights. Thankfully, one of them tried shoving, and his broken wrist convinced the rest to back out of reach. It made me awfully glad not to be an unarmed, smaller woman surrounded by a superstitious mob of yokels out to lynch individual rights through the initiation of force.

  14. Curtis J. Neeley, Jr., Petitioner v. Louis Jerry Edwards, et al., (15-7059)
    . . .Whole Woman’s Health v. Cole from Texas and MKB Management Corp. v. Stenehjem from North Dakota

    . . .These cases are not nearly as honorable as this case should be. Texas uses rare complications from later medicated abortions of gestation to also require hospital admitting privileges for proscribing abortafficients. This is a Texan attempt to limit the fundamental human right to abort gestation for 11-weeks and is wrong and should be resolved summarily.

    . . .Yes; the North Dakota “Heartbeat Act” recognizes a similar dignity of heartbeats, like Arkansas’ Act 301. North Dakota fails, however, to provide ample time for exercising the fundamental human right to abort gestation like Arkansas does when no independent individual fetus is nourished by a placenta. Arkansas does this to preserve autonomy, a core component of human dignity, not addressed by North Dakota and should be resolved summarily.

    1. So aborting a child is a fundamental human right? You are one sick piece of crap.

  15. Here’s how the court should have ruled: If the state of Wisconsin wishes to require abortion docs to have admitting privileges at nearby hospitals, the state is free to do so, but then the state must guarantee that abortion docs get those necessary admitting privileges, either by legally compelling already-existing hospitals near abortion clinics to grant admitting privileges to the docs who work at those clinics, or by building new hospitals (at the state’s expense) near abortion clinics, and requiring those new hospitals to grant admitting privileges to the doctors who work at the abortion clinics.

  16. As much as I hate abortion I hate illegal abortion, even more! Those petty politicians, including those doctors in the referral hospitals, finally got it handed to them! It as all an intent to shut down any abortion clinics in the state. Doctors have used this game, to limit the competition in their hospitals, for decades! What they have accomplished doing is getting poorer quality care for people in rural ares, shipping everyone off to “care centers” whose last accomplishment is actually caring about the patients! I feel sorry for the people because their care is now directed by committee. Your doctors have very little autonomy in the present state of corporate medicine. You no longer are anything but drivers of the bottom line! If you are an outlie-er, you can be eliminated with euthanasia, and no one will say a damned thing!

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  20. They have such a toxic mix of smug and evil that my desire to eliminate regulations almost takes a back seat to the schadenfreude I feel when their own totalitarian policies are used as a weapon against them.

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  22. This is the problem with letting looter political parties meddle in the economy; they turn everything into a venue for influence-peddling. Bad enough that mystical prohibitionists want to again ban condoms, birth control pills, diaphragms and reproductive choice while their government schools hand printing-press diplomas to students completely baffled by the mathematics of population growth. When was the last time you saw an activist for stripping pregnant women of individual rights mention the rate of population growth in connection with their pet environmental hobgoblins or their pious yearnings for peace?

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