Opinion · Court of Appeals for the Seventh Circuit
Planned Parenthood of Wisconsin, Inc. v. Van Hollen
738 F.3d 786
- Type
- Opinion
- Court
- Court of Appeals for the Seventh Circuit
- Jurisdiction
- Federal
- Date
- 2013-12-20
- Topic
- litigation
holding that "[w]hen one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered" | stressing that the weaker the state’s grounds for its regulations, “the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous” | noting that a 400 mile trip for two required appointments is a “nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children” | noting that requiring women to travel “400 miles” for their two required appointments is a “nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children” | affirming injunc- tion against requirement that physicians who perform abor- tions have admitting privileges at nearby hospital | affirming injunc- tion against requirement that physicians who perform abor- tions have admitting privileges at nearby hospital | affirming injunc- tion against requirement that physicians who perform abor- tions have admitting privileges at nearby hospital | affirming district court's finding of undue burden where the challenged law subjected patients to "weeks of delay" and "nontrivial travel burden[s]" | describing grace periods in other states passing similar admitting privileges requirement ranging from 76 to 128 days in Mississippi, Alabama, Texas and North Dakota | noting decreased likelihood doctors would obtain admitting privileges based on “widespread hostility to abortion and the lack of any likely benefit to a hospital from granting such privileges to an abortion doctor” | affirming availability of third-party standing based on the unquestionable “justiciability” of precedent cases “filed pursuant to section 1983” and “in which doctors and abortion clinics were found to have had standing” | noting technical and greatly disputed character of evidence on similar questions | “All we decide today is whether the district judge was justified in entering the preliminary injunction.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous” | “The impossibility of compliance with the statute” by abortion providers “is a compelling reason for the preliminary injunction” | “The state concedes that its only interest pertinent to this case is in the health of women who obtain abortions.” | “[T]he state on its side does not defend the statute as protecting fetal life but only as protecting the health of women who have abortions.” | “All we decide today is whether the district judge was justified in entering the preliminary injunction.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | “The feebler the.medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” | Manion, J., concurring in entry of a preliminary injunction because of “Wisconsin’s failure to include a reasonable time for compliance” | substantial obstacle where “the medical grounds ... are feeble, yet the burden great” | “It is not a matter of the number of women likely to be affected.” | “It is not a matter of the number of women likely to be affected.” | “It is not a matte
Citator
- Authority status
- pending
- Cited by
- 62 opinions
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2726
PLANNED PARENTHOOD OF WISCONSIN, INC., et al.,
Plaintiffs‐Appellees,
v.
J.B. VAN HOLLEN, Attorney General of Wisconsin, et al.,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13‐cv‐00465‐wmc — William M. Conley, Chief Judge.
____________________
ARGUED DECEMBER 3, 2013 — DECIDED DECEMBER 20, 2013
____________________
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 ad‐ mitting privileges at a hospital no more than 30 miles from 2 No. 13‐2726 the clinic in which the abortion is performed.Wis. Stat. § 253.095
(2).
A doctor granted admitting privileges by a hospital be‐
comes 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 “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 Wom‐
en’s Medical Services (also known as Affiliated Medical Ser‐
vices)—the only entities that operate abortion clinics in Wis‐
consin—filed suit (joined by two physicians affiliated with
these clinics, whom we’ll largely ignore in an effort to sim‐
plify 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 tem‐ porary 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 defend‐ ants—the Attorney General of Wisconsin and other state of‐ ficials involved in enforcing the statute (we refer to the de‐ No. 13‐2726 3 fendants 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 re‐
quested by the defendants, and in granting it the judge ex‐
plained 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 uncer‐
tainty (which will not be eliminated until this matter is re‐
solved 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 guid‐
ance to this court and the parties on the law and its applica‐
tion to the facts here. If anything, it would be inefficient for
this court to address the merits of plaintiffs’ claims until ob‐
taining this guidance from the Seventh Circuit” (citations
omitted).
All we decide today is whether the district judge was jus‐
tified in entering the preliminary injunction. Evidence pre‐
sented at trial may critically alter the facts found by the dis‐
trict 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 Mon‐
day. So there was only the weekend between the governor’s
4 No. 13‐2726
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 week‐
end days. It is unquestioned that it takes a minimum of two
or three months to obtain admitting privileges (often a hos‐
pital’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 such privi‐
leges 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 ap‐
plication 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 compli‐
ance with the statute even by doctors fully qualified for ad‐
mitting 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 dead‐
line, and if so that might seem to argue for a one‐year (or
even somewhat shorter) duration for the preliminary injunc‐
tion. But there should be no problem in getting the case to
trial and judgment well before July 8, 2014. The plaintiffs are
No. 13‐2726 5
ready to go to trial. The defendants contemplate very limited
discovery. Furthermore there are more reasons for the pre‐
liminary 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 wom‐
an 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 re‐
quirement 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 provi‐
sion concerning admitting privileges, focusing instead on
another provision—a requirement not challenged in this suit
that a woman seeking an abortion obtain an ultrasound ex‐
amination 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 anes‐
thesia, and even though more than a quarter of all surgery in
6 No. 13‐2726
the United States is now performed outside of hospitals, Ka‐
ren A. Cullen et al., “Ambulatory Surgery in the United
States: 2006,” Centers for Disease Control and Prevention: Na‐
tional Health Statistics Reports No. 11, Sept. 4, 2009, p. 5,
www.cdc.gov/nchs/data/nhsr/nhsr011.pdf (visited Dec. 19,
2013, as were the other websites cited in this opinion), is re‐
quired 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 mis‐
carriage, 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 de‐
fendants. These procedures, often performed by the same
doctors who perform abortions, appear to be virtually indis‐
tinguishable from abortion from a medical standpoint.
An issue of equal protection of the laws is lurking in this
case. For the state seems indifferent to complications from
non‐hospital procedures other than surgical abortion (espe‐
cially other gynecological procedures), even when they are
more likely to produce complications. The rate of complica‐
tions resulting in hospitalization from colonoscopies, for ex‐
ample, appears to be three to six times the rate of complica‐
tions from abortions. Compare Cynthia W. Ko et al., “Seri‐
ous Complications Within 30 Days of Screening and Surveil‐
lance Colonoscopy Are Uncommon,” 8 Clinical Gastroenterol‐
ogy & Hepatology 166, 171–72 (2010), with two studies cited in
an amicus curiae brief filed by the American College of Ob‐
No. 13‐2726 7
stetricians and Gynecologists, Tracy A. Weitz et al., “Safety
of Aspiration Abortion Performed by Nurse Practitioners,
Certified Nurse Midwives, and Physician Assistants Under a
California Legal Waiver,” 103 Am. J. Public Health 454, 457–
58 (2013), and Kelly Cleland et al., “Significant Adverse
Events and Outcomes After Medical Abortions,” 121 Obstet‐
rics & Gynecology 166, 169 (2013). Wisconsin’s annual report
on abortions suggests a higher incidence of complications
but it is unclear whether they all require hospitalization and
it still is lower than the reported incidence of complications
from colonoscopies. Wisconsin Department of Health Ser‐
vices, “Reported Induced Abortions in Wisconsin, 2012”
(Aug 2013), www.dhs.wisconsin.gov/publications/p4/
p45360‐12.pdf. It is possible that because of widespread dis‐
approval of abortion, abortions and their complications may
be underreported—some women who experience such com‐
plications and are hospitalized may tell the hospital staff that
the complications are from a miscarriage. But as yet there is
no evidence in the record of such undercounting. The state’s
own report on abortions, just cited, lists (at table 9 of the re‐
port) only 11 complications out of the 6,692 abortions of
Wisconsin residents reported in 2012—a rate of less than 1.6
tenths of 1 percent (1 per 608 abortions). And the report does
not indicate how many of the complications involved hospi‐
talization or whether 6,692 was an undercount of the num‐
ber of abortions.
We asked the state’s lawyer at oral argument what evi‐
dence he anticipated producing at the trial on the merits. He
did not mention evidence of alleged undercounting of abor‐
tions, but only that the state was looking for women in Wis‐
consin who had experienced complications from an abortion
to testify. He did not mention any medical or statistical evi‐
8 No. 13‐2726
dence. This may explain why the trial, originally scheduled
for November 25, only four and a half months after the suit
was filed, was expected to last only a couple of days. And it
is why we think it most unlikely that the trial can’t be com‐
pleted well before the one‐year anniversary of the date of the
statute’s enactment.
The district judge said in a footnote in his opinion that
while he would “await trial on the issue, … the complete ab‐
sence of an admitting privileges requirement for clinical [i.e.,
outpatient] procedures including for those with greater risk
is certainly evidence that Wisconsin Legislature’s only pur‐
pose in its enactment was to restrict the availability of safe,
legal abortion in this State, particularly given the lack of any
demonstrable medical benefit for its requirement either pre‐
sented to the Legislature or [to] this court” (emphasis in
original). A fuller enumeration of considerations based on
purpose would include the two‐day deadline for obtaining
admitting privileges, the apparent absence of any medical
benefit from requiring doctors who perform abortions to
have such privileges at a nearby or even any hospital, the
differential treatment of abortion vis‐à‐vis medical proce‐
dures that are at least as dangerous as abortions and proba‐
bly more so, and finally the strange private civil remedy for
violations: The father or grandparent of the “aborted unborn
child” is entitled to obtain damages, including for emotional
and psychological distress, if the abortion was performed by
a doctor who violated the admitting‐privileges provision.
Wis. Stat. § 253.095
(4)(a). Yet if the law is aimed only at pro‐
tecting the mother’s health, a violation of the law could harm
the fetus’s father or grandparent only if the mother were in‐
jured as a result of her abortion doctor’s lacking the required
admitting privileges. But no proof of such injury is required
No. 13‐2726 9
to entitle the father or grandparent to damages if he proves a
violation and resulting emotional or psychological injury to
himself.
However, the purpose of the statute is not at issue in this
appeal. In urging affirmance the plaintiffs reserve the issue
for trial, arguing to us only that the law discourages abor‐
tions without medical justification and imposes an undue
burden on women. And the state on its side does not defend
the statute as protecting fetal life but only as protecting the
health of women who have abortions.
Wisconsin’s statute is not unique. Six states have laws
nearly identical to Wisconsin’s: Ala. Code § 26‐23E‐4; Miss.
Code. § 41‐75‐1(f); Mo. Stat. § 188.080; N.D. Cent. Code § 14‐
02.1‐04(1); Tenn. Code § 39‐15‐202(h); Tex. Health & Safety
Code § 171.0031(a)(1). Five more have similar though less
stringent requirements relating to admitting privileges for
abortion doctors: Ariz. Rev. Stat. § 36‐449.03(C)(3); Fla. Stat. § 390.012
(3)(c)(1); Ind. Code § 16‐34‐2‐4.5; Kan. Stat. § 65‐
4a09(d)(3); Utah Admin. Code R432‐600‐13(2)(a). The plain‐
tiffs argue that such laws, which are advocated by the right
to life movement, are intended to hamstring abortion. The
defendants deny this. We needn’t take sides. Discovering the
intent behind a statute is difficult at best because of the col‐
lective character of a legislature, and may be impossible with
regard to the admitting‐privileges statutes. Some Wisconsin
legislators doubtless voted for the statute in the hope that it
would reduce the abortion rate, but others may have voted
for it because they considered it a first step toward making
invasive outpatient procedures in general safer.
As now appears (the trial may cast the facts in a different
light), the statute, whatever the intent behind it (if there is a
10 No. 13‐2726
single intent), seems bound to have a substantial impact on
the practical availability of abortion in Wisconsin, and not
only because of the unreasonably tight implementation
deadline. Virtually all abortions in Wisconsin are performed
at the plaintiffs’ four clinics; no other clinics in the state per‐
form abortions and hospitals perform only a small fraction
of the state’s abortions; and a significant fraction of the clin‐
ics’ doctors don’t have admitting privileges at hospitals
within 30‐mile radii of their clinics.
What is more, because few doctors in Wisconsin perform
abortions, those who do often work at more than one clinic,
so that the statute would require them to obtain admitting
privileges at multiple hospitals. And whether any of the
hospitals would give these doctors admitting privileges is
unknown. It is true that federal law prohibits hospitals that
receive federal funding, including Catholic hospitals, from
denying admitting privileges merely because a doctor per‐
forms abortions. 42 U.S.C. § 300a‐7(c)(1)(B) (the “Church
Amendments”). Yet Wisconsin State Senator Mary Lazich,
one of the authors of the admitting‐privileges law, was
seemingly unaware of the Church Amendments, as were in‐
deed officials of the largest Catholic hospitals in Wisconsin,
which before they were informed of the amendments were
emphatic that their religious beliefs would preclude their
granting admitting privileges to doctors who perform abor‐
tions. Akbar Ahmed, “Abortion Ruling Mired in Confu‐
sion,” Milwaukee Journal Sentinel, July 27, 2013, p. A1,
www.jsonline.com/news/statepolitics/court‐file‐shows‐
confusion‐over‐wisconsin‐abortion‐regulation‐law‐
b9961373z1‐217196251.html#ixzz2mcyeJ5ba. In the words of
the chief medical officer of one such hospital, “Wheaton
Franciscan Healthcare is a ministry of the Catholic church.
No. 13‐2726 11
… For that reason, if it’s known to us that a doctor performs
abortions and that doctor applies for privileges at one of our
hospitals, our hospital board would not grant privileges.” Id.
So not only would allowing the new law to go into effect
on July 8 have wreaked havoc with the provision of abor‐
tions in Wisconsin because of the months it would have tak‐
en for the doctors who perform abortions to obtain admit‐
ting privileges within the prescribed radii of their clinics; in
addition their requests for such privileges would have en‐
countered resistance at Catholic hospitals—and perhaps at
other hospitals as well, given the widespread hostility to
abortion and the lack of any likely benefit to a hospital from
granting such privileges to an abortion doctor.
The criteria for granting admitting privileges are multi‐
ple, various, and unweighted. They include how frequently
the physician uses the hospital (that is, the number of patient
admissions), the quantity of services provided to the patient
at the hospital, the revenue generated by the physician’s pa‐
tient admissions, and the physician’s membership in a par‐
ticular practice group or academic faculty (“closed staff” ar‐
rangements). Barry R. Furrow et al., Health Law § 14‐15, pp.
707–08 (2d ed. 2000); Elizabeth A. Weeks, “The New Eco‐
nomic Credentialing: Protecting Hospitals from Competition
by Medical Staff Members,” 36 J. Health L. 247
, 249–52 (2003).
The absence of definite standards for the granting of admit‐
ting privileges makes it difficult not only to predict who will
be granted such privileges at what hospitals and when, but
also to prove an improper motive for denial. Akbar Ahmed,
“Hospitals Can’t Deny Privileges,” Milwaukee Journal Senti‐
nel, Aug. 7, 2013, p. A1, www.jsonline.com/news/
statepolitics/wisconsin‐attorney‐general‐says‐hospitals‐cant‐
12 No. 13‐2726
deny‐admitting‐privileges‐to‐abortion‐doctors‐b997046‐
218608951.html, points out for example that according to the
Senior Counsel of the National Women’s Law Center, “in
other states that have recently passed privileges require‐
ments for abortion providers, religiously affiliated hospitals
have denied the doctors’ applications by citing their failure
to meet other standards, such as admitting a certain number
of patients per year. In Mississippi, a Baptist hospital did not
provide doctors at an abortion clinic with an application for
privileges because none of its staff would write letters in
support of the doctors, according to a court affidavit provid‐
ed by the clinic’s attorneys at the Center for Reproductive
Rights.”
Pretext aside, a common and lawful criterion for granting
admitting privileges (though it has been criticized by the
American Medical Association, see AMA, “Opinion 4.07—
Staff Privileges,” www.ama‐assn.org/ama/pub/physician‐
resources/medical‐ethics/code‐medical‐ethics/
opinion407.page) is the number of patient admissions a doc‐
tor can be expected to produce for the hospital—the more
the better, as that means more utilization of hospital em‐
ployees and resources and hence more fees for the hospital.
But the number of patient admissions by doctors who per‐
form abortions is likely to be negligible because there appear
to be so few complications from abortions and only a frac‐
tion of those require hospitalization—probably a very small
fraction. An even smaller fraction will still be near the hospi‐
tal at which the doctor has admitting privileges when the
complication arises. The state does not dispute the district
court’s finding that “up to half of the complications will not
present themselves until after the patient is home.”
No. 13‐2726 13
But what is certain and also not disputed by the state is
that banning abortions by doctors who cannot obtain the
requisite admitting privileges within the span of a weekend
is bound to impede access to abortions. It would have creat‐
ed (had it not been for judicial intervention) a hiatus of un‐
known duration (but duration measured in months rather
than in weeks or days) in which a critical number of the few
doctors who perform abortions in Wisconsin would have
been forbidden to do so, under threat of heavy penalties if
they disobeyed.
There cannot have been a felt sense of urgency on the
state’s part for making the law effective too abruptly to al‐
low compliance with it. It has been 40 years since Roe v.
Wade, 410 U.S. 113
(1973), was decided, legalizing (most)
abortion throughout the United States, and it could not have
taken the State of Wisconsin all this time to discover the
supposed hazards of abortions performed by doctors who
do not have admitting privileges at a nearby hospital. The
state can without harm to its legitimate interests wait a few
months more to implement its new law, should it prevail in
this litigation.
One reason it can wait is that its expressed concern about
the hazards resulting from abortions performed by doctors
who don’t have admitting privileges at a nearby hospital has
intersected a movement in the hospital industry (an industry
in ferment, as everyone now knows) to restrict admitting
privileges on economic grounds. See Weeks, supra, at 248–49,
252–53 (“for example, hospitals may refuse to grant initial or
continuing staff privileges to physicians who own or have
other financial interests in competing healthcare entities, re‐
fer patients to competing entities, have staff privileges at any
14 No. 13‐2726
other area hospitals, or fail to admit some specified percent‐
age of their patients to the hospital”); Peter J. Hammer &
William M. Sage, “Antitrust, Health Care Quality, and the
Courts,” 102 Colum. L. Rev. 545
, 567–68 and n. 58 (2002). The
trend in the hospital industry is for the hospital to require
the treating physician to hand over his patient who requires
hospitalization to physicians employed by the hospital, ra‐
ther than allowing the treating physician to continue partici‐
pating in the patient’s treatment in the hospital. Wisconsin is
trying to buck that trend—but only with regard to abortions,
though there is no evidence that the complications to which
abortion can give rise require greater physician continuity
than other outpatient procedures. And there is no evidence
that women who have complications from an abortion re‐
cover more quickly or more completely or with less pain or
discomfort if their physician has admitting privileges at the
hospital to which the patient is taken for treatment of the
complications.
The state devotes most of its briefing in this court not to
the merits but instead to arguing that the plaintiffs cannot be
allowed to maintain this suit because their rights have not
been violated. The state does not deny that they may be in‐
jured by the statute. But it argues that no rights of theirs
have been violated but only rights of their patients, if it is
true (which of course the defendants deny) that the statute is
a gratuitous interference with a woman’s right to an abor‐
tion.
Yet the cases are legion that allow an abortion provider,
such as Planned Parenthood of Wisconsin or Milwaukee
Women’s Medical Services, to sue to enjoin as violations of
federal law (hence litigable under 42 U.S.C. § 1983
) state No. 13‐2726 15 laws that restrict abortion. See, e.g., Isaacson v. Horne,716 F.3d 1213, 1221
(9th Cir. 2013) (“recognizing the confidential nature of the physician‐patient relationship and the difficul‐ ty for patients of directly vindicating their rights without compromising their privacy, the Supreme Court has enter‐ tained both broad facial challenges and pre‐enforcement as‐ applied challenges to abortion laws brought by physicians on behalf of their patients”); Richard H. Fallon, Jr., “As‐ Applied and Facial Challenges and Third‐Party Standing,”113 Harv. L. Rev. 1321
, 1359–61 (2000). The reason for allow‐
ing such third‐party standing in the present case is different
from but analogous to the reason that persuaded the Su‐
preme Court, beginning with Roe v. Wade, to waive the
mootness defense to a suit by a pregnant woman challenging
a state law restricting abortion. The suit could not be litigat‐
ed to judgment before she gave birth; and so if mootness
were allowed as a defense, restrictions on abortion could not
effectively be challenged by the persons whose rights the re‐
strictions infringe. That was a practical bar to insisting on
first‐party standing. The bar in this case is the extraordinary
heterogeneity of the class likely to be affected by the statute.
If two of the four abortion clinics in the state close and a
third shrinks by half, some women wanting an abortion may
experience delay in obtaining, or even be unable to obtain,
an abortion yet not realize that the new law is likely to have
been the cause. Those women are unlikely to sue. Other
women may be able to find an abortion doctor who has ad‐
mitting privileges at a nearby hospital, yet incur costs and
delay because the law has reduced the number of abortion
doctors and hence access. The heterogeneity of the class is
likely to preclude class action treatment; and while one or a
16 No. 13‐2726
handful of women might sue, the entire statute would be un‐
likely to be enjoined on the basis of such a suit.
The principal objection to third‐party standing is that it
wrests control of the lawsuit from the person or persons
primarily concerned in it. See, e.g., MainStreet Organization of
Realtors v. Calumet City, 505 F.3d 742, 746
(7th Cir. 2007); 13A
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 3531.9.3, pp. 720–26 (3d ed.
2008). For an extreme example, imagine that if A broke his
contract with B, a stranger to both of them could sue A for
breach of contract, leaving B out in the cold. But that is not a
problem in a case such as this. Wisconsin women who have
or want to have an abortion are not seeking damages from
the state, and so are not losing control over their legal rights
as a result of litigation by clinics and doctors. They are (or
would be, if they were plaintiffs) seeking the same thing the
clinics are seeking (with greater resources): invalidating the
statute.
Anyway there is an alternative ground for standing, un‐
related to third‐party standing, in this case. The Supreme
Court held in Doe v. Bolton, 410 U.S. 179, 188
(1973) (the companion case to Roe v. Wade), that doctors (two of the plaintiffs in this case are doctors) have first‐party standing to challenge laws limiting abortion when, as in Doe v. Bolton and the present case as well, seeWis. Stat. §§ 253.095
(3), (4), penalties for violation of the laws are visited on the doctors. See also Planned Parenthood of Southeastern Pennsylvania v. Ca‐ sey,505 U.S. 833
, 903–04, 909 (1992); Planned Parenthood of Central Missouri v. Danforth,428 U.S. 52, 62
(1976); Karlin v. Foust,188 F.3d 446
, 456 n. 5 (7th Cir. 1999); Planned Parenthood of Wisconsin v. Doyle,162 F.3d 463, 465
(7th Cir.
No. 13‐2726 17
1998); 13A Wright, Miller & Cooper, supra, pp. 748–50. The
state argues that none of these precedents governs because
none of them “grapple[d] with whether [42 U.S.C.] § 1983
creates a cause of action for abortion providers or clinics to
assert the rights of their patients.” But nearly all the cited
cases in which doctors and abortion clinics were found to
have had standing had been filed pursuant to section 1983,
and the justiciability of such cases is not in question.
Apart from the issue of standing just discussed, the legal
principles applicable to our consideration of the appeal are
not in contention between the parties. The task of the district
court asked to grant a preliminary injunction is “to estimate
the likelihood that the plaintiff will prevail in a full trial and
which of the parties is likely to be harmed more by a ruling,
granting or denying a preliminary injunction, in favor of the
other party, and combine these findings in the manner sug‐
gested in such cases as Abbott Laboratories v. Mead Johnson &
Co., 971 F.2d 6, 12
(7th Cir. 1992): ‘the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less like‐ ly it is the plaintiff will succeed, the more the balance need weigh towards its side.’” Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc.,735 F.3d 735, 740
(7th Cir. 2013); see also NLRB v. Electro–Voice, Inc.,83 F.3d 1559, 1568
(7th Cir. 1996); Grocery Outlet Inc. v. Albertson’s Inc.,497 F.3d 949, 951
(9th Cir. 2007) (per curiam); O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,389 F.3d 973
, 1028–29 (10th Cir. 2004) (en banc) (per curiam), affirmed,546 U.S. 418
(2006); Novartis Consumer Health, Inc. v. Johnson & Johnson– Merck Consumer Pharmaceuticals Co.,290 F.3d 578, 597
(3d Cir. 2002). This formulation is a variant of, though consistent with, the Supreme Court’s recent formulations of the stand‐ 18 No. 13‐2726 ard, in such cases as Winter v. National Resources Defense Council, Inc.,555 U.S. 7, 20
(2008): “A plaintiff seeking a pre‐
liminary injunction must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public inter‐
est.”
Because of the uncertainty involved in balancing the con‐
siderations that bear on the decision whether to grant a pre‐
liminary injunction—an uncertainty amplified by the una‐
voidable haste with which the district judge must strike the
balance—we appellate judges review his decision deferen‐
tially.
The state concedes that its only interest pertinent to this
case is in the health of women who obtain abortions. But it
has neither presented evidence of a health benefit (beyond
an inconclusive affidavit by one doctor concerning one abor‐
tion patient in another state, as we’ll see), or rebutted the
plaintiffs’ evidence that the statute if upheld will harm abor‐
tion providers and their clients and potential clients.
And it is beyond dispute that the plaintiffs face greater
harm irreparable by the entry of a final judgment in their fa‐
vor than the irreparable harm that the state faces if the im‐
plementation of its statute is delayed. For if forced to comply
with the statute, only later to be vindicated when a final
judgment is entered, the plaintiffs will incur in the interim
the disruption of the services that the abortion clinics pro‐
vide. With the closure of two and a half of the state’s four
abortion clinics if their doctors fail to obtain admitting privi‐
leges, including one clinic responsible for half the abortions
performed in the state, their doctors’ practices will be shut
No. 13‐2726 19
down completely unless and until the doctors obtain visiting
privileges at nearby hospitals. Patients will be subjected to
weeks of delay because of the sudden shortage of eligible
doctors—and delay in obtaining an abortion can result in the
progression of a pregnancy to a stage at which an abortion
would be less safe, and eventually illegal.
Some patients will be unable to afford the longer trips
they’ll have to make to obtain an abortion when the clinics
near them shut down—60 percent of the clinics’ patients
have incomes below the federal poverty line. One of the clin‐
ics that will close is Planned Parenthood’s clinic in Appleton,
which, as shown in the accompanying map, is in the approx‐
imate center of the state. The remaining abortion clinics are
in Madison or Milwaukee, about 100 miles south of Apple‐
ton. A woman who lives north of Appleton who wants an
abortion may (unless she lives close to the Minnesota border
with Wisconsin and not far from an abortion clinic in that
state) have to travel up to an additional 100 miles each way
to obtain it. And that is really 400 miles—a nontrivial burden
on the financially strapped and others who have difficulty
traveling long distances to obtain an abortion, such as those
who already have children. For Wisconsin law requires two
trips to the abortion clinic (the first for counseling and an ul‐
trasound) with at least twenty‐four hours between them.
Wis. Stat. § 253.10
(3)(c). When one abortion regulation com‐
pounds the effects of another, the aggregate effects on abor‐
tion rights must be considered.
20 No. 13‐2726
The state has made no attempt to show an offsetting
harm from a delay of a few months in the implementation of
its new law (should it be upheld after a trial). States that
have passed similar laws have allowed much longer imple‐
mentation time than a weekend—for example, Mississippi
has allowed 76 days, Alabama 114 days, Texas 103, and
North Dakota 128. See 2012 Miss. Gen. Laws 331 (H.B. 1390),
enjoined, Jackson Women’s Health Org. v. Currier, 940 F. Supp. 2d 416, 424
(S.D. Miss. 2013); 2013 Ala. Legis. Serv. 2013‐79 (H.B. 57), enjoined, Planned Parenthood Southeast, Inc. v. Bent‐ ley, No. 2:13cv405‐MHT,2013 WL 3287109, at *8
(M.D. Ala. June 28, 2013); 2013 Tex. Sess. Law Serv. 2nd Called Sess. Ch. No. 13‐2726 21 1 (H.B. 2), permanent injunction stayed pending appeal, Planned Parenthood of Greater Texas Surgical Health Services v. Abbott,734 F.3d 406
(5th Cir. 2013); 2013 North Dakota Laws Ch. 118 (S.B. 2305), enjoined, MKB Management Corp. v. Bur‐ dick, No. 1:13‐cv‐071,2013 WL 3779740, at *2
(D.N.D. July 22,
2013).
Is there such urgency to implementing the law, because
Wisconsin is rife with serious complications from abortion
and requiring admitting privileges to hospitals within short
distances of abortion clinics is essential to preventing such
complications? As noted earlier, the state has presented no
evidence of either reason for the weekend deadline. Compli‐
cations of abortion are estimated to occur in only one out of
111 physician‐performed aspiration abortions (the most
common type of surgical abortion); and 96 percent of com‐
plications are “minor.” Weitz et al., supra, p. 457; cf. Cleland
et al., supra. The official Wisconsin figure, cited earlier, is
much lower: one complication per 608 abortions. Few com‐
plications require hospitalization; studies cited earlier found
that only 1 in 1,915 aspiration abortions (0.05%) and 1 in
1,732 medical abortions (0.06%) result in complications re‐
quiring hospitalization. Weitz et al., supra, p. 459; Cleland et
al., supra, p. 169 table 2.
What fraction of these hospitalizations go awry because
the doctor who performed the abortion did not have admit‐
ting privileges at the hospital to which the woman was taken
is another unknown in a case in which thus far the state has
been chary in the presentation of evidence. True, one doctor,
who said he’s been treating complications from abortions for
29 years, furnished the defendants with an affidavit describ‐
ing a case in which, he opines, a woman with a complication
22 No. 13‐2726
from an abortion might have avoided a hysterectomy had her
abortion doctor, who did not have admitting privileges, re‐
mained in closer touch with her. That is the only evidence in
the record that any woman whose abortion results in com‐
plications has ever, anywhere in the United States, been
made worse off by being “handed over” by her abortion
doctor to a gynecologist employed by the hospital to which
she’s taken. One (doubtful) case in 29 years is not impressive
evidence of the medical benefits of the Wisconsin statute.
And we note that as a protection for Wisconsin women who
have abortions, abortion clinics—uniquely, it appears,
among outpatient providers of medical services in Wiscon‐
sin—are required to adopt the transfer protocols, mentioned
earlier, which are intended to assure prompt hospitalization
of any abortion patient who experiences complications seri‐
ous enough to require hospitalization. See Wis. Admin.
Code Med. § 11.04(g).
The defendants argue that obtaining admitting privileges
operates as a kind of Good Housekeeping Seal of Approval
of a physician. But that benefit does not require that the hos‐
pital in which he obtains the privileges be within a 30‐mile
radius of the clinic. Cf. Women’s Health Center of West County,
Inc. v. Webster, 871 F.2d 1377
, 1378–81 (8th Cir. 1989) (up‐
holding an admitting privileges requirement with no geo‐
graphic restriction). Several abortion doctors in Wisconsin
who lack admitting privileges at hospitals within 30 miles
have them at hospitals beyond that radius. Yet they are not
excused by the statute from having to obtain the same privi‐
leges from a hospital within 30 miles.
Furthermore, nothing in the statute requires an abortion
doctor who has admitting privileges to care for a patient
No. 13‐2726 23
who has complications from an abortion. He doesn’t have to
accompany her to the hospital, treat her there, visit her, call
her, or indeed do anything that a doctor employed by the
hospital might not do for the patient.
Also the statute does not distinguish between surgical
and medical abortions. The latter term refers to an abortion
induced by a pill given to the patient by her doctor: she takes
one pill in the clinic, goes home, and takes a second pill a
few days later to complete the procedure. (The first pill ends
the fetus’s life, the second induces the uterus to expel the
remains.) Her home may be far from any hospital within a
30‐mile radius of her doctor’s clinic, but close to a hospital
outside that radius. If she calls an ambulance, the paramed‐
ics are likely to take her to the nearest hospital—a hospital at
which her doctor is unlikely to have admitting privileges.
Likewise in the case of surgical abortions when complica‐
tions occur not at the clinic, during or immediately after the
abortion, but after the patient has returned home: because of
distance she may no longer have ready access to the hospi‐
tals near the clinic at which the abortion was performed,
even though she may live near a hospital at which the doctor
who performed her abortion does not have admitting privi‐
leges.
The cases that deal with abortion‐related statutes sought
to be justified on medical grounds require not only evidence
(here lacking as we have seen) that the medical grounds are
legitimate but also that the statute not impose an “undue
burden” on women seeking abortions. Planned Parenthood of
Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 874, 877
, 900–01 (plurality opinion); Stenberg v. Carhart,530 U.S. 914, 930, 938
(2000); cf. Mazurek v. Armstrong,520 U.S. 968
, 972–73 24 No. 13‐2726 (1997) (per curiam). The feebler the medical grounds, the likelier the burden, even if slight, to be “undue” in the sense of disproportionate or gratuitous. It is not a matter of the number of women likely to be affected. “[A]n undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Planned Parenthood of Southeastern Pennsylvania v. Casey, su‐ pra,505 U.S. at 877
(plurality opinion). In this case the medi‐
cal grounds thus far presented (“thus far” being an im‐
portant qualification given the procedural setting—a prelim‐
inary‐injunction proceeding) are feeble, yet the burden great
because of the state’s refusal to have permitted abortion
providers a reasonable time within which to comply.
And so the district judge’s grant of the injunction must be
upheld. But given the technical character of the evidence
likely to figure in the trial—both evidence strictly medical
and evidence statistical in character concerning the conse‐
quences both for the safety of abortions and the availability
of abortion in Wisconsin—the district judge may want to re‐
consider appointing a neutral medical expert to testify at the
trial, as authorized by Fed. R. Evid. 706, despite the parties’
earlier objections. Given the passions that swirl about abor‐
tion rights and their limitations there is a danger that party
experts will have strong biases, clouding their judgment.
They will still be allowed to testify if they survive a Daubert
challenge, but a court‐appointed expert may help the judge
to resolve the clash of the warring party experts. And the
judge may be able to procure a genuine neutral expert simp‐
ly by directing the party experts to confer and agree on two
or three qualified neutrals among whom the judge can
choose with confidence in their competence and neutrality.
No. 13‐2726 25
If either side’s party experts stonewall in the negotiations for
the compilation of the neutral list, the judge can take disci‐
plinary action; we doubt that will be necessary.
We emphasize in conclusion that the trial on the merits
may cast the facts we have recited, based as they are on the
record (by no means slim, however, though entirely docu‐
mentary) of the preliminary‐injunction proceeding, in a dif‐
ferent light. That record—all we have—requires that the dis‐
trict judge’s grant of the preliminary injunction be, and it
hereby is,
AFFIRMED.
26 No. 13-2726
MANION, Circuit Judge, concurring in part and in the
judgment.
I agree with the court that the temporary restraining order
and the subsequent preliminary injunction were appropriate.
The Wisconsin law at issue requires abortion doctors to obtain
admitting privileges at a hospital no more than 30 miles from
the clinic in which the abortion is performed. 2013 Wis. Act 37,
§ 1 (codified at Wis. Stat. § 253.095
(2)). As I explain below, the
legislature had a rational basis to enact the law. However, the
law was signed by the governor on a Friday and took effect the
following Monday. The law’s immediate effective date made
it impossible for the doctors employed at the various clinics
providing abortion services to seek and obtain admitting
privileges at a nearby hospital. The injunctive relief has now
been in place for nearly half a year, so abortion doctors have
had plenty of time to secure admitting privileges. However, in
this appeal, Wisconsin has only argued that the original entry
of the injunction was error, so whether the injunction remains
appropriate will be decided on remand. I also agree with the
court about third-party standing. There is no need for the
parties to dwell on this issue.
As the court notes, at this juncture, “the Seventh Circuit’s
review of the preliminary injunction order will likely provide
guidance to the court and the parties on the law and its
application to the facts here.” Maj. Op. at 3. The court has
expressed rather extensive guidance for the district court on
remand. At this point, I hope to offer some of my own observa-
tions on the legitimate interests that are furthered by the
requirements of Wisconsin Act 37 and the nature of the
No. 13-2726 27
burdens that the requirements may impose on access to
abortion.
The Two-Part Test for Laws Regulating the
Provision of Abortions
“Where it has a rational basis to act, and it does not impose
an undue burden, the State may” regulate the provision of
abortions. Gonzales v. Carhart, 550 U.S. 124, 158
(2007). Thus, legislation regulating abortions must past muster under rational basis review and must not have the “practical effect of imposing an undue burden” on the ability of women to obtain abortions. See Karlin v. Foust,188 F.3d 446, 481
(7th Cir. 1999); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,734 F.3d 406, 411
(5th Cir. 2013), application to vacate stay of injunction denied,134 S. Ct. 506
(Nov. 19, 2013).
Step 1: Rational Basis
At the first step, we must presume that the admitting-
privileges requirement is constitutional, and uphold it so long
as the requirement is rationally related to Wisconsin’s legiti-
mate interests. See St. John’s United Church of Christ v. City of
Chicago, 502 F.3d 616
, 637–38 (7th Cir. 2007) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr.,473 U.S. 432, 440
(1985)). Wisconsin asserts that its admitting-privileges requirement furthers its legitimate interests in protecting the health of mothers and in maintaining the professional standards applicable to abortion doctors. Carhart,550 U.S. at 157
; Planned Parenthood of Se. Pa. v. Casey,505 U.S. 833, 846
(1992). The question, then, is whether Wisconsin’s adoption of the admitting-privileges requirement is rationally related to these interests. “Under rational basis review, ‘the plaintiff has the 28 No. 13-2726 burden of proving the government’s action irrational,’ and “[t]he government may defend the rationality of its action on any ground it can muster, not just the one articulated at the time of decision.’” RJB Props., Inc. v. Bd. of Educ. of Chicago,468 F.3d 1005, 1010
(7th Cir. 2006) (quoting Smith v. City of Chicago,457 F.3d 643, 652
(7th Cir. 2006)).
The court suggests that Wisconsin must come forward with
medical evidence that the admitting-privileges requirement
furthers the State’s legitimate interests. Maj. Op. at 23. But,
under rational basis review, Wisconsin’s legislative choice
“may be based on rational speculation unsupported by
evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993). States have “broad latitude” to regulate abortion doctors, “even if an objective assessment might suggest that” the regulation is not medically necessary. Mazurek v. Armstrong,520 U.S. 968, 973
(1997) (quotation marks and emphasis omitted). Thus, the Supreme Court has rejected as misguided arguments that an abortion law is unconstitu- tional because the medical evidence contradicts the claim that the law has any medical basis. Id.; see also Greenville Women’s Clinic v. Bryant,222 F.3d 157
, 169 (4th Cir. 2000) (“[T]here is no requirement that a state refrain from regulating abortion facilities until a public-health problem manifests itself. In Danforth, for example, the [Supreme] Court upheld health measures that ‘may be helpful’ and ‘can be useful.’” (quoting Planned Parenthood of Cent. Mo. v. Danforth,428 U.S. 52
, 80–81 (1976))). In sum, Wisconsin need offer only “a ‘conceivable state of facts that could provide a rational basis’ for requiring abortion physicians to have hospital admission privileges.” Abbott,734 F.3d at 411
(quoting F.C.C.,508 U.S. at 313
).
No. 13-2726 29
The Medical Professions’ Support for Admitting Privileges
In 2003, the American College of Surgeons issued a state-
ment on patient-safety principles that reflected a consensus in
the surgical community “on a set of 10 core principles that
states should examine when moving to regulate office-based
procedures.”1 These principles were based on a document that
was unanimously agreed to by medical associations of every
stripe, including the American Medical Association and the
American College of Obstetricians and Gynecologists. Core
Principle #4 provides that “[p]hysicians performing
office-based surgery must have admitting privileges at a
nearby hospital, a transfer agreement with another physician
who has admitting privileges at a nearby hospital, or maintain
an emergency transfer agreement with a nearby hospital.”
Unsurprisingly, the National Abortion Federation has specifi-
cally recommended that “[i]n the case of emergency, the doctor
should be able to admit patients to a nearby hospital (no more
than 20 minutes away).” National Abortion Federation, Having
an Abortion? Your Guide to Good Care (2000) (pamphlet),
available at http://web.archive.org/web/20000619200916/http://
www.prochoice.org/pregnant/goodcare.htm (internet archive
of NAF website on June 19, 2000) (hereinafter, “NAF Guide to
Good Care”). This should be sufficient to establish that Wiscon-
1
See American College of Surgeons, Statement on Patient Safety Principles for
Office-based Surgery Utilizing Moderate Sedation/Analgesia, Deep Seda-
tion/Analgesia, or General Anesthesia, Bulletin of the American College of
Surgeons, Vol. 89, No. 4 (Apr. 2004), available at http://www.facs.org/
fellows_info/statements/st-46.html (last visited on Dec. 12, 2013, as were the
other websites cited in this opinion).
30 No. 13-2726
sin’s admitting-privileges requirement is reasonably designed
to promote the state’s legitimate interest in women’s health.
And, as the court recognizes, Wisconsin is one of twelve states
adopting such a requirement. Maj. Op. at 9.
The Benefits of Admitting Privileges in an Emergency Situation
Further, the parties agree that at least a small number of
abortions result in complications that require hospitalization.2
Wisconsin offers doctors’ declarations establishing that the
admitting-privileges requirement expedites the admission
process and avoids mis-communications between the patient
and the hospital in situations where swift treatment is critical.
See J.A. 149–50, ¶¶ 12–19 (Decl. of Dr. James Anderson);
175–76, ¶ 14 (Decl. of Dr. Matthew Lee); 184, ¶ 9 (Decl. of Dr.
Linn); 237–38, ¶¶ 6–12 (Decl. of Dr. David C. Merrill); 332–33,
¶¶ 25–31 (Decl. of Dr. John Thorp); see also Darrell J. Solet, MD,
et al., Lost in Translation: Challenges and Opportunities to
Physician-to-Physician Communication During Patient Handoffs,
80 Academic Medicine 1094, 1097 (Dec. 2005) (observing, in the
2
The exact percentage is in dispute, but at least .3% of abortions result in
complications requiring hospitalization. In Wisconsin, this amounts to a
woman requiring hospitalization as a result of an abortion or attempted
abortion every 16 days. As the court recognizes, however, this percentage
is likely artificially low due to under-reporting. Maj. Op. at 7. When a
woman is admitted to a hospital without a request for admission from an
abortion doctor, the social stigmas associated with abortion will likely cause
her to report her complications as arising from a miscarriage or other
mishap rather than a botched abortion. See also Abbott, 734 F.3d at 412
(quoting Dr. John Thorp regarding “the ‘unique nature of an elective pregnancy termination and its likely under-reported morbidity and mortality’”); J.A. 183, ¶ 6 & n.1 (Decl. of Dr. Linn). No. 13-2726 31 context of patient transfers, that “poor communication in medical practice turns out to be one of the most common causes of error”). After all, the abortion doctor is better acquainted with his patient’s medical history and is in a better position to quickly diagnose complications resulting from the procedure. See J.A. 238, ¶ 12 (Decl. of Dr. Merrill); 332, ¶ 25 (Decl. of Dr. Thorp). Additionally, the admitting-privileges requirement ensures “that a physician will have the authority to admit his patient into a hospital whose resources and facilities are familiar to him … .” Women’s Health Ctr. of W. Cnty., Inc. v. Webster,871 F.2d 1377
, 1381 (8th Cir. 1989)
(quotation marks omitted).
The Oversight Function of the Admitting-Privileges Requirement
Moreover, “[t]he requirement that physicians performing
abortions must have hospital admitting privileges helps to
ensure that credentialing of physicians beyond initial licensing
and periodic license renewal occurs.”3 Abbott, 734 F.3d at 411
. Thus, Wisconsin’s admitting-privileges requirement adds an extra layer of protection for all of the patients of abortion 3 The court expresses doubts about this justification because Wisconsin requires that the hospital be within 30 miles of the clinic at which the doctor performs the abortions. “Under rational basis review, however, the [selected means] need not be the most narrowly tailored means available to achieve the desired end.” Zehner v. Trigg,133 F.3d 459, 463
(7th Cir. 1997); see also American College of Surgeons, supra note 1 (“Physicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital.”) (emphasis added); NAF Guide to Good Care (recommend- ing admitting privileges at a hospital “no more than 20 minutes away”). 32 No. 13-2726 doctors. Indeed, every circuit to address the issue has held that admitting-privileges requirements further states’ legitimate interests. Abbott,734 F.3d at 412
(“We have little difficulty in concluding that, with regard to the district court’s rational basis determination, the State has made a strong showing that it is likely to prevail on the merits.”); Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control,317 F.3d 357
,
363 (4th Cir. 2002) (“These requirements of having admitting
privileges at local hospitals and referral arrangements with
local experts are so obviously beneficial to patients.”); Webster,
871 F.2d at 1381 (Missouri’s admitting-privileges requirement
“furthers important state health objectives.”).
Admitting Privileges and Other Outpatient Surgeries
The court emphasizes the fact that Wisconsin has not
imposed an admitting-privileges requirement on doctors who
perform outpatient procedures other than abortion. But the
plaintiffs bear the burden of proof and have offered no
evidence that doctors in those other fields have a lack of
admitting privileges—as do abortion doctors—which would
necessitate a legislative response. Moreover, there is no
mandate that state legislatures uniformly regulate medical
procedures—or regulate medical procedures with higher or
even the highest incidents of complications. States “may select
one phase of one field and apply a remedy there, neglecting the
others.” Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489
(1955). Finally, Wisconsin had a perfectly good reason for
addressing abortion first—namely, the Gosnell scandal.
No. 13-2726 33
The Dr. Kermit Gosnell Scandal
There has been no high-profile exposure of substandard
care by doctors who perform outpatient procedures other than
abortion. However, just a few weeks prior to the enactment of
Wisconsin’s admitting-privileges requirement, there was a
shocking revelation of terrible conditions and procedures at an
abortion clinic that received nationwide attention. On May 13,
2013, a Philadelphia abortion doctor, Dr. Kermit Gosnell, was
convicted of three counts of first-degree murder for the death
of three infants delivered alive but subsequently killed at his
clinic. The record in this appeal contains articles extensively
discussing the egregious health care practices at Dr. Gosnell’s
clinic leading up to his conviction. These include bloody floors
and unlicensed employees conducting gynecological examina-
tions and administering painkillers, resulting in the death of a
patient. See J.A. 154 (Joann Loviglio, Abortion Doctor Suspended
After Philadelphia Raid: ‘Deplorable’ Conditions Reported At Kermit
Gosnell’s Office, The Huffington Post, Feb. 23, 2010, http://
www.huffingtonpost.com/2010/02/23/abortion-doctor-
suspended_n_473963.html). In addition, media reports
circulated that, among other things, Dr. Gosnell physically
assaulted and performed a forced abortion on a minor and left
fetal remains in a woman’s uterus causing her excruciating
pain.4 Although these details were first publicized after Dr.
Gosnell’s arrest in 2011, the case did not garner national
4
Jessica Hopper, Alleged Victim Calls Philadelphia Abortion Doc Kermit Gosnell
a ‘Monster’, ABC News, Jan. 25, 2011, http://abcnews.go.com/US/alleged-
victim-calls-philadelphia-abortion-doctor-kermit-gosnell/story?
id=12731387&singlePage=true
34 No. 13-2726
attention until his trial in March 2013. Unsurprisingly, the case
provoked shock and outrage, prompting a heightened concern
for the health of women seeking abortions. In addition to Dr.
Gosnell’s case, Wisconsin identifies numerous other examples
of egregious and substandard care by abortion providers and
clinics. See Appendix to the Concurrence; J.A. 154–56.
On June 4, 2013, Wisconsin Act 37, which contained the
admitting-privileges requirement at issue in this appeal and
also contained an ultrasound requirement, was introduced in
the Wisconsin Senate. On June 12, the Act passed in the Senate.
On June 13, the Act passed in the Assembly, where it was
returned to the Senate and presented to the governor for his
signature on July 3. On July 5, the Act was signed into law by
the governor. This timeline demonstrates that Wisconsin
legislators promptly responded to their constituents’ concerns.
Wisconsin Act 37 was a response to the dangers (graphically
illustrated by Dr. Gosnell’s case) to women’s health and the
right to freely exercise their choice.
The Interaction Between the Act’s Admitting-Privileges
and Ultrasound Requirements
In addition, the admitting-privileges requirement furthers
the Act’s ultrasound requirement. See Wis. Stat. § 253.10
(3)(c).
Performing an ultrasound allows an abortion doctor to get a
clear picture of the woman’s pregnancy—including the
gestational age and size of the unborn child, whether there are
twins, whether the heart is beating,5 and the orientation of the
5
Detecting a heartbeat enables the abortion doctor to determine whether
(continued...)
No. 13-2726 35
unborn child within the uterus—which allows the doctor to
anticipate any likely complications. The law requires that,
absent an emergency, the woman receive an ultrasound at the
clinic or elsewhere. Accordingly, regardless of where the
ultrasound is performed, important and easily determinable
facts about the pregnancy are available to the abortion doctor.
Additionally, the ultrasound must be explained to the woman
so that she can exercise her right to choose while fully in-
formed.6 These benefits conferred by the ultrasound require
5
(...continued)
the unborn child is still alive—a serious concern in light of the prevalence
of miscarriages. See National Institute of Health, National Library of
Medicine, Miscarriage, http://www.nlm.nih.gov/medlineplus/ency/article/
001488.htm (“Among women who know they are pregnant, the miscarriage
rate is about 15-20%.”). Determining whether there is a beating heart is a
crucial component to ensuring that a woman receives quality care. For
example, if more than seven weeks have passed since the last menstrual
cycle (“LMC”), and there is no fetal heartbeat, then the unborn child is
almost certainly naturally deceased—although a pregnancy test will
continue to generate a positive result. In that situation, the woman must be
fully informed about whether an abortion is still necessary because state-
subsidized private health insurance and Medicaid—which in most cases do
not cover an abortion—will generally cover the procedure for removing the
remains. See Wis. Stat. Ann. § 632.8985
(prohibiting coverage of abortions by health plans offered through health benefit exchanges);Wis. Stat. Ann. § 20.927
(prohibiting state or municipal subsidies for the performance of
abortions).
6
Wisconsin may also hope that a woman who sees the ultrasound picture
of her unborn child and hears the heart beating will choose to carry the
unborn child to term. But because the ultrasound requirement is not
challenged in this case, Wisconsin does not assert its legitimate interest in
(continued...)
36 No. 13-2726
ment are secured by the oversight function of the admitting-
privileges requirement. Specifically, hospitals extending
admitting privileges are given a role in ensuring that the new
requirements for the protection of women’s health and choice
are observed by abortion doctors—to prevent a substandard
abortion care crisis in Wisconsin.
Additionally, many abortion-seeking patients face uniquely
challenging circumstances not faced by other surgery patients.
Many are young and vulnerable. Some may be pressured by
angry, disappointed parents or by a putative father shirking
responsibility. And, as the court remarks, there is wide-spread
social disapproval of abortion. Maj. Op. at 7. So the woman is
likely seeking absolute privacy and has had little or no external
consultation or advice. A legislature could rationally speculate
that a surgical procedure commonly undergone by young and
vulnerable patients under the influence of either direct or
social pressures is in greater need of regulation.
In summary, “[t]he State ‘may regulate the abortion
procedure to the extent that the regulation reasonably relates
to the preservation and protection of maternal health.’” City of
Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416
, 430–31 (1983) (quoting Roe v. Wade,410 U.S. 113, 163
(1973)). That is what Wisconsin has done in this case, and its decision to do so by means of an admitting-privileges requirement is certainly rational. 6 (...continued) fetal life here. See Carhart,550 U.S. at 145
(recognizing “that the government
has a legitimate and substantial interest in preserving and promoting fetal
life” pre-viability).
No. 13-2726 37
Step 2: Undue Burden
The court also suggests that the admitting-privileges
requirement imposes significant burdens on women’s ability
to obtain abortions. At this second step, we must determine
“whether the [admitting privileges requirement has] the
practical effect of imposing an undue burden” on women’s
abortion rights. Karlin, 188 F.3d at 481
. We cannot find the requirement unconstitutional unless the plaintiffs can show that the requirement “will have the likely effect of preventing a significant number of women for whom the regulation is relevant from obtaining abortions.”Id.
In this case, because the requirement applies to all abortion doctors in the state, it affects all Wisconsin women who may seek abortions.7 See Abbott,734 F.3d at 414
. Therefore, the question is whether the requirement prevents “a significant number of” women from obtaining abortions. At this step too, the plaintiffs have the burden of proof. See Karlin,188 F.3d at 485
; Bryant, 222 F.3d at
171.
In suggesting that Wisconsin’s admitting-privileges
requirement imposes an undue burden, the court emphasizes
that it will temporarily force two abortion clinics to stop
providing abortions and another clinic to cut the number of
doctors by half, which could cause delays for women seeking
abortions. Of course, this effect will only last until the doctors
at these clinics obtain admitting privileges in accordance with
7
Thus, the district court erred because it limited its review to women living
in the areas near the clinics that may be closed.
38 No. 13-2726
the law.8 Regardless, more than 70% of women in Wisconsin
who seek abortions live in the southern counties near Milwau-
kee and Madison, where clinics will continue operating. See
J.A. 292. Thus, to the extent the remaining clinics are unable to
quickly adjust for the decreased supply of legally qualified
abortion doctors, most Wisconsin women seeking abortions
can travel to clinics in Illinois. Indeed, women living in the
northern part of Wisconsin can seek abortions in Minnesota.
For example, both Minneapolis and Duluth have abortion
clinics.9 Thus, the admitting-privileges requirement itself will
likely not prevent any woman from obtaining an abortion if
she wishes to do so. See Bryant, 222 F.3d at 163, 170–72 (holding
that “increased costs, delays in the ability to obtain abortions,
decreased availability of abortion clinics, [and] increased
distances to travel to clinics” do not constitute an undue
burden). Any delays are merely the incidental effects of
8
The undue burden analysis is not concerned with any burden the law
may place on abortion doctors, except insofar as the law burdens women’s
ability to obtain abortions. Any burden on women will vanish once abortion
doctors obtain admitting privileges.
9
The district court thought that the availability of abortions in cities near
the Wisconsin border was irrelevant. Although the Wisconsin law does not
affect doctors performing abortions in Minnesota, the availability of near-
but-out-of-state abortions at least speaks to whether the admitting-
privileges requirement has the “practical effect” of preventing a “significant
number” of women from obtaining abortions. In our economy, crossing
state lines to obtain services at a nearby urban center is common. Thus, state
lines are unlikely to affect a woman’s decision about where to get an
abortion and the availability of abortion at out-of-state clinics should be
considered in the undue burden analysis.
No. 13-2726 39
abortion doctors’ obligation to come into compliance with the
admitting-privileges requirement. The fact that the require-
ment “has the incidental effect of making it more difficult or
more expensive to procure an abortion cannot be enough to
invalidate it.” Casey, 505 U.S. at 874
. And here, we are affirm-
ing the district court’s decision to give abortion doctors a
reasonable amount of time to obtain admitting privileges.10
The court is also concerned by the fact that (because of
Wisconsin’s 24-hour waiting law) some Wisconsin women live
around 100 miles from the closest abortion clinic—namely,
those living in north-eastern Wisconsin—and consequently,
will have to traverse that distance four times to obtain abor-
tions (if they cannot afford to spend the night at a local hotel).11
10
Now that some months have passed, Wisconsin abortion doctors have
had sufficient time to come into compliance with the admitting-privileges
requirement. The court suggests that disapproval for abortion may interfere
with abortion doctors’ abilities to obtain admitting privileges at sectarian
hospitals. Maj. Op. at 10–11. However, “Lutheran and Jewish hospitals in
Milwaukee allow abortions.” J.A. 185, ¶ 13 (Decl. of Dr. James G. Linn).
Furthermore, “[w]hile Catholic hospitals do not permit abortions to be
performed at their facilities, they do allow abortion providers staff
membership.” Id.
(“I know for a fact that Catholic hospitals in Milwaukee
have or have had abortion providers on their medical staffs.”). Although
federal law prohibits sectarian hospitals from discriminating against
abortion doctors when awarding admitting privileges, it seems reasonable
that—in light of Catholic social teaching—Catholic hospitals would wish to
grant admitting privileges to abortion doctors so that women injured by
abortions would have better access to the compassionate medical care
needed in that delicate circumstance.
11
The number of women who seek abortions living in the areas near the
(continued...)
40 No. 13-2726
The court suggests that the time and costs of that travel will
prevent a “significant number” of Wisconsin women from
obtaining abortions. But the costs of traveling up to 100 miles
on four different occasions pale in comparison to the cost of an
abortion. The costs of travel are undoubtedly inconvenient, but
an inconvenience—even a “severe inconvenience”—“is not an
undue burden.” Karlin, 188 F.3d at 481
; see also Casey,505 U.S. at 874
(“The fact that a law which serves a valid purpose, one
not designed to strike at the right itself, has the incidental effect
of making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it.”); Bryant, 222 F.3d
at 163, 170–72.
Moreover, in reversing a district court’s decision to prelimi-
narily enjoin Texas’s admitting-privileges requirement, the
Fifth Circuit recently held that “[a]n increase in travel distance
of less than 150 miles for some women is not an undue burden
on abortion rights.” Abbott, 734 F.3d at 415
. Texas also imposes a 24-hour waiting requirement (which applies to any woman who lives within 100 miles of the clinic). See Tex. Health & Safety Code § 171.012(a)(4). Thus, under Abbott, Texas women could face an increase in travel distance of almost 400 miles. If an increase in travel distance of almost 400 miles is not an undue burden, it is difficult to see how a total travel distance of 11 (...continued) closed clinics is apparently very small compared to those living near the clinics that will continue to operate. Thus, the admitting-privileges requirement likely only will compel a few rural women to drive longer distances. So it is far from clear that a “significant number” of women will be prevented from obtaining abortions. No. 13-2726 41 about 400 miles could be. See also Bryant, 222 F.3d at 170–71 (finding that admitting-privileges requirement imposed no undue burden where, inter alia, an abortion clinic was still operating “some 70 miles away”); Women’s Med. Prof’l Corp. v. Baird,438 F.3d 595, 605
(6th Cir. 2006) (concluding, in an as-
applied challenge to abortion regulation, that an increase in
travel distance of 45 to 55 miles is not an undue burden).
In summary, the plaintiffs “have not demonstrated that the
[admitting-privileges requirement] would be unconstitutional
in a large fraction of relevant cases.” Carhart, 550 U.S. at 167-68
. The other circuits to address this issue have reached the same conclusion. See Abbott,734 F.3d at 416, 419
; Bryant, 222 F.3d at
159, 173.
Conclusion
The decision to have an abortion is, for many women, “the
most difficult decision they will ever make.” Lizz Winstead,
Abortion Is a Medical Procedure, The Huffington Post, Nov. 11,
2012, http://www.huffingtonpost.com/lizz-winstead/abortion-
is-a-medical-procedure_b_2064176.html. Therefore, when a
woman enters an abortion clinic, she has a right to expect
excellent care from a qualified doctor. One key component of
quality care is the use of an ultrasound, which furnishes the
abortion doctor with important and easily determinable facts
about the pregnancy related to the woman’s health and
exercise of her free choice. For example, an ultrasound allows
a determination of whether there is a fetal heartbeat, the
gestational age and size of the unborn child, and whether there
42 No. 13-2726
are twins.12 An ultrasound is also material to the costs of the
procedure inasmuch as it may reveal that an abortion is no
longer necessary (if the unborn child is no longer alive) and
because clinics base the cost of the abortion procedure on the
unborn child’s gestational age.
The admitting-privileges requirement has an indisputable
benefit when emergency care is needed. If serious complica-
tions arise, then the woman should be able to call her clinic and
speak with the doctor who treated her. If that physician has
admitting privileges, he or she can direct the woman to the
hospital and meet her there, or at least contact the hospital and
notify the proper admitting personnel to describe the possible
causes of the woman’s symptoms. Then, upon arrival at the
hospital, the woman would be able to receive immediate care.
And, if necessary, the hospital’s doctor could contact the
abortion doctor to confidentially obtain further details. Indeed,
by requiring abortion doctors to commit to continued care, the
admitting-privileges requirement prevents a situation where
a hospital doctor is not fully aware of medical concerns
because the patient does not wish to disclose that she had an
abortion. Relatedly, the ability to obtain any followup care
from same doctor furthers a patient’s interest in privacy—a
significant concern given the social stigma associated with
abortion. Moreover, the admitting-privileges requirement
furthers the state’s interest in preventing crises of substandard
12
If the ultrasound reveals twins, this result may cause a woman to
reconsider or at least reflect on an unexpected circumstance. In either case,
the ultrasound furthers her health and ability to make a fully informed
decision.
No. 13-2726 43
care. By entrusting hospitals with an oversight function, the
requirement guards against worst-case scenarios.
The notion that abortion doctors will be unable to obtain
admitting privileges is a fiction. Some already have them.13
Even sectarian hospitals, apart from their legal duties, are
interested in providing compassionate care to women who
need it. Some hospitals may not allow elective or discretionary
abortions to be performed on their premises, but even these
hospitals have every reason to grant admitting privileges to
abortion doctors in order to ensure that women in need receive
adequate—as well as compassionate—medical care.
At trial, testimony from a technician who routinely per-
forms ultrasounds on pregnant women—those who anticipate
and look forward to having a baby as well as those who are
considering terminating an unwanted pregnancy—would be
beneficial. A neutral technician could explain the value an
ultrasound provides for women’s health in order to further
illustrate the oversight benefit of the admitting-privileges
requirement.
13
According to the plaintiffs, Planned Parenthood’s Milwaukee-Jackson
clinic would be able to remain open even if the admitting-privileges
requirement went into effect. Thus, at least one abortion doctor at that clinic
must have admitting privileges at a nearby hospital. But Affiliated Medical
Services’ clinic, which will allegedly close for lack of abortion doctors with
admitting privileges, is only 1.3 miles away from Planned Parenthood’s
Milwaukee-Jackson clinic. So any claim that abortion doctors at AMS will
be unable to obtain admitting privileges because of recalcitrant local
hospitals is all but meritless.
44 No. 13-2726
Wisconsin’s admitting-privileges requirement is rationally
related to the State’s legitimate interests and should not create
an undue burden to Wisconsin women’s right to abortion. But
Wisconsin’s failure to include a reasonable time for compliance
merited a preliminary injunction. Therefore, I concur in part
and concur in the judgment.
No. 13-2726 45
Appendix to the Concurrence
Dr. Soleiman Soli in Pennsylvania. See Mark Scolforo, Two
Abortion Clinics Closed After Reports, The Washington Times,
Mar. 10, 2011, http://www.washingtontimes.com/news/2011/
mar/10/2-abortion-clinics-closed-after-reports/ (two abortion
clinics shut down when inspection revealed expired drugs,
uncalibrated medical equipment, and untrained personnel; a
network of abortion care providers described the clinics as
“women exploiters” ).
Dr. Andrew Rutland in California. See C. Perkes, Abortion
Doctor Gives Up License Over Death, Orange County Register,
Jan. 25, 2011, http://www.ocregister.com/articles/rutland-
285561-death-license.html (woman died where clinic “was not
equipped to handle emergencies” and the abortion doctor
“failed to recognize [an allergic] reaction, adequately attempt
resuscitation or promptly call 911.” The doctor had previously
given up his license “after allegations of . . . scaring patients
into unnecessary hysterectomies, botching surgeries, lying to
patients, falsifying medical records, over-prescribing painkill-
ers and having sex with a patient in his office.”).
Dr. Albert Dworkin in Delaware. See Steven Ertelt, Hearing:
Delaware Abortionist Helped Kermit Gosnell Avoid Law, LifeNews,
Mar. 16, 2011, http://www.lifenews.com/2011/03/16/hearing-
delaware-abortionist-helped-kermit-gosnell-avoid-law/ (doctor
46 No. 13-2726
complicit in Kermit Gosnell’s violations has license suspended).
Dr. James Pendergraft in Florida. See Steven Ertelt, Abortion
Practitioner James Pendergraft Loses Florida License a Fourth Time,
LifeNews, Jan. 1, 2009, http://www.lifenews.com/2009/01/01/
state-5339/ (abortion doctor’s license suspended for fourth time
for entrusting drug administration to unlicensed employee,
previous suspensions included a botched abortion that
resulted in the unborn child being shoved into the abdominal
cavity and requiring that the woman receive a hysterectomy).
The Gentilly Medical Clinic for Women and the Hope
Medical Group for Women in Louisiana. See Steven Ertelt,
Abortion Business in Louisiana Loses License for Poor Health, Safety
Standards, LifeNews, Jan. 20, 2010, http://www.lifenews.com/
2010/01/20/state-4743/ (clinic lost license for operating without
trained nurse or proper drug license); P. J. Smith, Louisiana
Abortion Clinic Shut Down for Ignoring “Most Basic” Medical
Practices, LifeNews, Sep. 7, 2011, http://www.lifesitenews.com/
news/archive/ldn/2010/sep/10090707 (clinic’s operations
suspended for failing to observe “the most basic medical
practices” including “provid[ing] women a physical examina-
tion prior to abortions” or “follow[ing] necessary protocols for
the administration of anesthesia and monitoring their clients’
vital signs”).
Drs. Romeo Ferrer, George Shepard, Leroy Carhart, and
Nicola Riley in Maryland. See, respectively, Steven Ertelt,
No. 13-2726 47
Pro-Lifers Want Maryland Practitioner Disciplined, Killed Woman
in Botched Abortion, LifeNews, June 1, 2010, http://
www.lifenews.com/2010/06/01/state-5145/ (“Board of Physi-
cian’s Peer Reviewers concluded the woman’s death resulted
from Ferrer’s failure to meet the standard of quality care in
violation of state law.”); Steven Ertelt, Troubled Abortion Biz Sees
Two Practitioners Lose Medical Licenses, LifeNews, Sept. 3, 2010,
http://www.lifenews.com/2010/09/03/state-5416/ (transfer of
patient of botched abortion in a rental car to a clinic in another
state leads to the discovery, and suspension, of two doctors
circumventing state law); Authorities: Woman Died from Abortion
Complications, June 12, 2013, http://www.usatoday.com/story/
news/nation/2013/02/21/woman-late-term-abortion-bled-
todeath/1935799/ (Dr. Carhart is under investigation for the
death of Jennifer Morbelli, a 29 year-old school teacher who
underwent a late-term abortion); The order is available at
http://abortiondocs.org/wp-content/uploads/2013/05/
Nicola-Riley-MD-Permanent-Revocation-May-6-2013.pdf
(order permanently revoking Dr. Nicola Riley’s medical license
Maryland after she failed to call for emergency help for a
critically injured abortion patient and transported her to the
hospital in the backseat of a rental car).
Dr. Steven Brigham in Maryland, New Jersey, and Pennsyl-
vania. See N.J. Targets Abortion Doctor Steven Brigham’s License,
Lehigh Valley Live, Sept. 9, 2010, http://www.lehighvalleylive.
com/phillipsburg/index.ssf/2010/09/nj_targets_abortion_
doctor_ste.html (New Jersey seeks to take doctor’s license after
Maryland already took his license for risky interstate abortion
scheme).
48 No. 13-2726
Dr. Rapin Osathanondh in Massachusetts. See Denise
Lavoie, Doctor Gets 6 Months in Abortion Patient Death, Associ-
ated Press, Sep. 14, 2010, http://www.msnbc.msn.com/id/
39177186/ns/us_news-crime_and_courts/t/doctor-gets-months-
abortion-patientdeath/ (doctor sentenced to six months in jail
for involuntary manslaughter because “he failed to monitor
[abortion patient] while she was under anesthesia, delayed
calling emergency services when her heart stopped, and later
lied to try to cover up his actions.”).
Dr. Alberto Hodari in Michigan. See Schuette Files Suit to
Close Unlicensed Abortion Clinic, Office of the Attorney General,
State of Michigan, Mar. 29, 2011, http://www.michigan.gov/ag/
0,4534,7-164--253426--,00.html (Michigan Attorney General
sues to close abortion clinic for failing to comply with health
and safety rules applicable to surgical outpatient facilities).
Drs. Salomon Epstein and Robert Hosty in New York. See
Steven Ertelt, Practitioner Denies He Botched Legal Abortion That
Killed Hispanic Woman, LifeNews, Mar. 1, 2010, http://
www.lifenews.com/2010/03/01/state-4858/ (New York police
investigate doctor after 37-year-old patient dies in botched
abortion); http://operationrescue.org/pdfs/Hosty%20
revocation.pdf (eventually, responsibility for the death Dr.
Epstein was investigated for was attributed to another doctor
at the clinic, Dr. Hosty, whose license was revoked in this
order); Southwestern Women’ Options in New Mexico, see
Jeremy Kryn, New 911 Call from New Mexico Abortion Clinic
Exposes Pattern of Emergencies, LifeNews, Oct. 20, 2011, http://
No. 13-2726 49
www.lifesitenews.com/news/new-911-call-from-new-mexico-
abortion-clinic-exposes-pattern-of-emergencies (“A recording
of a 911 call . . . highlights the continuing danger [at] an
Albuquerque abortion clinic . . . . The call is the eleventh
emergency call [from the clinic] in less than two years . . . .” it
was transcribed as follows, “‘Uh, we have a 31-year-old female
who underwent an abortion today. She’s continuing to bleed.
We need to transfer her to the hospital, please’ . . . . ‘The
bleeding is persistent. It will not stop.’”).
Dr. Tami Lynn Holst Thorndike in North Dakota. See
Denise Burke, North Dakota Abortionist Practices With Expired
License, Americans United for Life, Nov. 8, 2010, http://
www.aul.org/2010/11/north-dakota-abortionist-practices-with-
expired-license/ (“[A] North Dakota abortionist is being
investigated for practicing with an expired license.”).
Drs. Robert E. Hanson Jr., Margaret Kini, Douglas Karpen,
Pedro J. Kowalyszyn, Sherwood C. Lynn Jr., Alan Molson,
Robert L. Prince, H. Brook Randal, Franz Theard, and William
W. West, Jr. of Whole Women’ Health in Texas. See Steven
Ertelt, Tenth Texas Abortion Practitioner Under State Investigation,
LifeNews, Aug. 24, 2011, http://www.lifenews.com/2011/08/24/
tenth-texas-abortion-practitioner-under-state-investigation/
(abortion center investigated for “illegal dumping of patient
records and medical waste”).
50 No. 13-2726
Dr. Thomas Walter Tucker II in Alabama and Mississippi.
See Abortion Doctor Suspended for Improper Drug Storage,
Orlando Sentinel, Apr. 24, 1994, http://articles.orlandosentinel.
com/1994-04-24/news/9404240462_1_abortion-doctor-tucker
-licensing (Dr. Tucker lost his medical license for drug-storage
violations, and was subsequently found liable for $10 million
in a medical malpractice case involving the death of an
abortion patient. See Former Abortion Doctor Ordered to Pay $10
Million, Sun Herald, Dec. 8, 1996, 1996 WLNR 256209).
Dr. Mi Yong Kim in New York and Virginia. See Operation
Rescue, Troubled Virginia Abortion Clinic Puts Bleeding Botched
Abortion Patient in Hospital, LifeSiteNews, Apr. 20, 2012, http://
www.lifesitenews.com/news/troubled-virginia-abortion-clinic-
puts-bleeding-botched-abortion-patient-in/ (patient put in
hospital after abortion at clinic run by a doctor whose license
had been surrendered. The surrender order available at http://
abortiondocs.org/wp-content/uploads/2012/04/Kim-VA-
License-Surrender05182007.pdf.).