806 F.3d 908 - The New York Timesgraphics8.nytimes.com/.../greenhouse/806F.3d908.pdf.pdf · 2018....

908 806 FEDERAL REPORTER, 3d SERIES

PLANNED PARENTHOOD OFWISCONSIN, INC., et al.,

Plaintiffs–Appellees,

v.

Brad D. SCHIMEL, Attorney Generalof Wisconsin, et al., Defendants–

Appellants.

No. 15–1736.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 1, 2015.

Decided Nov. 23, 2015.Background: Abortion providers and af-filiated doctors employed by providersbrought § 1983 action against state offi-cials, alleging statute requiring physicianswho provided abortion services to haveadmitting privileges at a hospital within 30miles of the abortion clinic was unconstitu-tional. The United States District Courtfor the Western District of Wisconsin, Wil-liam M. Conley, Chief Judge, granted apermanent injunction against enforcementof the statute. State appealed.Holding: The Court of Appeals, Posner,Circuit Judge, held that statute placed un-due burden on women seeking abortion,and thus was unconstitutional.Affirmed.

Manion, Circuit Judge, filed dissentingopinion.

1. Abortion and Birth Control O110 Constitutional Law O3766, 4452

Wisconsin statute requiring physicianswho provided abortion services to haveadmitting privileges at hospital within 30miles of abortion clinic placed undue bur-den on women seeking abortion, and thusviolated Fourteenth Amendment equalprotection and due process clauses; admit-ting privileges did not contribute to conti-

nuity of care, Wisconsin did not requiredoctors performing other outpatient medi-cal procedures to have admitting privi-leges, statute would substantially curtailavailability of abortion in Wisconsin giventhat some abortion providers would likelyclose, wait times would increase to meetdemand which could result in some womenhaving to forego abortion or obtain second-trimester abortion, and there would likelybe increased costs of travel, which wouldbe prohibitive for poor women. U.S.C.A.Const.Amend. 14; W.S.A. 253.095.

2. Constitutional Law O2480

The courts have an independent con-stitutional duty to review a legislature’sfactual findings where constitutional rightsare at stake.


The proposition that the harm to aconstitutional right can be measured bythe extent to which it can be exercised inanother jurisdiction is a profoundly mis-taken assumption.


The obligation of the State to give theprotection of equal laws can be performedonly where its laws operate, that is, withinits own jurisdiction, and it is there that theequality of legal right must be maintained;that obligation is imposed by the Constitu-tion upon the States severally as govern-mental entities, each responsible for itsown laws establishing the rights and dutiesof persons within its borders, and it is anobligation the burden of which cannot becast by one State upon another, and noState can be excused from performance bywhat another State may do or fail to do.

5. Abortion and Birth Control O108

An abortion-restricting statute soughtto be justified on medical grounds requiresnot only reason to believe that the medical

909PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMELCite as 806 F.3d 908 (7th Cir. 2015)

grounds are valid, but also reason to be-lieve that the restrictions are not dispro-portionate, in their effect on the right toan abortion, to the medical benefits thatthe restrictions are believed to confer, andso do not impose an undue burden onwomen seeking abortions.

6. Abortion and Birth Control O104,105

To determine whether the burden im-posed by a statute restricting access toabortion is undue, or excessive, the courtmust weigh the burdens against the state’sjustification, asking whether and to whatextent the challenged regulation actuallyadvances the state’s interests; if a burdensignificantly exceeds what is necessary toadvance the state’s interests, it is undue,which is to say unconstitutional.

West Codenotes

Held Unconstitutional

W.S.A. 253.095.

Laurence Jacques Dupuis, Attorney,American Civil Liberty Union of Wiscon-sin, Milwaukee, WI, Carrie Y. Flaxman,Attorney, Planned Parent Federation ofAmerica, Washington, DC, Lester A.Pines, Attorney, Cullen Weston Pines &Bach LLP, Madison, WI, Roger K. Evans,Attorney, Diana Salgado, Attorney,Planned Parenthood Federation of Amer-ica, New York, N.Y., for Plaintiffs–Appel-lees.

Brian Patrick Keenan, Attorney, Clay-ton P. Kawski, Attorney, Office of the At-torney General Wisconsin Department ofJustice, Madison, WI, for Defendants–Ap-pellants.

Before POSNER, MANION, andHAMILTON, Circuit Judges.

POSNER, Circuit Judge.

On July 5, 2013, the Governor of Wis-consin signed into law a statute that theWisconsin legislature had passed the pre-vious month. So far as relates to this ap-peal the statute prohibits a doctor, underthreat of heavy penalties if he defies theprohibition, from performing an abortion(and in Wisconsin only doctors are allowedto perform abortions, Wis. Stat.§ 940.15(5)) unless he has admitting privi-leges at a hospital no more than 30 milesfrom the clinic in which the abortion isperformed. Wis. Stat. § 253.095(2).

A doctor granted admitting privileges bya hospital becomes a member of the hospi-tal’s staff and is authorized to admit pa-tients to that hospital and to treat themthere; that is the meaning of ‘‘admittingprivileges.’’ Of course any doctor (in factany person) can bring a patient to anemergency room to be treated by the doc-tors employed there. A hospital that hasan emergency room is obliged to admitand to treat a patient requiring emergencycare even if the patient is uninsured. 42U.S.C. § 1395dd(b)(1). Moreover, all Wis-consin abortion clinics are required by law(see Wis. Admin. Code Med. § 11.04(1)(g))to have transfer agreements with localhospitals to streamline the process oftransferring the patient from the abortionclinic to a nearby hospital, which could beimportant if the patient would be betterserved elsewhere in a hospital than theemergency room—though in that event theemergency room doctors would send her tothe part of the hospital in which she couldbest be served.

Planned Parenthood of Wisconsin andMilwaukee Women’s Medical Services(also known as Affiliated Medical Services,commonly referred to as AMS)—which op-


erate the only four abortion clinics in Wis-consin—joined by two doctors employedby Planned Parenthood, filed suit on theday the governor signed the statute intolaw. The plaintiffs challenged the stat-ute’s constitutionality under 42 U.S.C.§ 1983, which provides a tort remedy forviolations of federal law by state officialsor other state employees. The plaintiffssought and obtained first a temporary re-straining order and then a preliminary in-junction against enforcement of the statute(not the entire statute, just the provisionregarding admitting privileges for abortiondoctors—but for simplicity we’ll generallycall that provision ‘‘the statute’’).

The defendants (the Wisconsin attorneygeneral, Wisconsin district attorneys, theWisconsin Secretary of the Department ofSafety and Professional Services, andmembers of the state’s Medical ExaminingBoard) appealed from the grant of thepreliminary injunction. 28 U.S.C.§ 1292(a)(1). We affirmed the grant inPlanned Parenthood of Wisconsin, Inc. v.Van Hollen, 738 F.3d 786 (7th Cir.2013).That cleared the way for the district judgeto conduct a full trial, which he did. Thetrial culminated in his granting a perma-nent injunction against enforcement of thestatute, which was the relief sought by theplaintiffs. The defendants (essentially, thestate) have again appealed, arguing thatthe statute protects the health of womenwho experience complications from anabortion. The plaintiffs disagree, arguingthat if allowed to go into effect the statutewould not protect the health of women butwould simply make it more difficult forthem to obtain abortions, period, in viola-tion of constitutional rights recognized bythe U.S. Supreme Court.

There might appear to be a questionabout standing to sue, since the principalvictims of the statute are women desiringabortions and none of them is a plaintiff.

But we explained in our opinion upholdingthe preliminary injunction that the plain-tiffs have standing. The cases are legionthat allow an abortion provider, such asPlanned Parenthood of Wisconsin or AMS,to sue to enjoin as violations of federal law(hence litigable under 42 U.S.C. § 1983)state laws that restrict abortion. Thesecases emphasize not the harm to the abor-tion clinic of making abortions very diffi-cult to obtain legally, though that might bean alternative ground for recognizing aclinic’s standing, but rather ‘‘the confiden-tial nature of the physician-patient rela-tionship and the difficulty for patients ofdirectly vindicating their rights withoutcompromising their privacy,’’ as a result ofwhich ‘‘the Supreme Court has entertainedboth broad facial challenges and pre-en-forcement as-applied challenges to abor-tion laws brought by physicians on behalfof their patients.’’ Isaacson v. Horne, 716F.3d 1213, 1221 (9th Cir.2013); see alsoRichard H. Fallon, Jr., ‘‘As–Applied andFacial Challenges and Third–Party Stand-ing,’’ 113 Harv. L. Rev. 1321, 1359–61(2000).

A related consideration, important inthis case as we’ll see, is the heterogeneityof the class that is likely to be affected bythe Wisconsin statute. If one of the abor-tion clinics in the state closes, placing in-creased demand on the others, somewomen wanting an abortion will experi-ence delay in obtaining, or may even beunable to obtain, an abortion, yet not real-ize that the new law is likely to have beenthe cause. Those women would be un-likely to sue. Other women might be ableto find an abortion doctor who had admit-ting privileges at a nearby hospital, yetstill incur costs and delay because the lawhad reduced the number of doctors whoare allowed to perform abortions. Suitsto recover the costs, including some quan-tification of the cost of delay, would beawkward. A suit by clinics and doctors


seeking injunctive relief is more feasibleand if successful gives the women whatthey want. If the clinics and doctors win,the patients win.

And finally the Supreme Court held inDoe v. Bolton, 410 U.S. 179, 188, 93 S.Ct.739, 35 L.Ed.2d 201 (1973) (the companioncase to Roe v. Wade, 410 U.S. 113, 93 S.Ct.705, 35 L.Ed.2d 147 (1973)), that abortiondoctors (remember that the two individualplaintiffs in this case are doctors employedby abortion clinics) have first-party stand-ing to challenge laws limiting abortionwhen, as in Doe and the present case aswell, penalties for violation of the laws arevisited on the doctors. Wis. Stat.§§ 253.095(3), (4); see Planned Parent-hood of Southeastern Pennsylvania v. Ca-sey, 505 U.S. 833, 903–04, 909, 112 S.Ct.2791, 120 L.Ed.2d 674 (1992) (pluralityopinion); Planned Parenthood of CentralMissouri v. Danforth, 428 U.S. 52, 62, 96S.Ct. 2831, 49 L.Ed.2d 788 (1976); Karlinv. Foust, 188 F.3d 446, 456 n. 5 (7th Cir.1999); Planned Parenthood of Wisconsinv. Doyle, 162 F.3d 463, 465 (7th Cir.1998).

Although signed into law on a Friday(July 5, 2013), Wisconsin’s statute requiredcompliance—the possession, by every doc-tor who performs abortions, of admittingprivileges at a hospital within a 30–mileradius of each clinic at which the doctorperforms abortions—by the following Sun-day (July 7, 2013). See Wis. Stat.§§ 253.095(2), 991.11. There was no wayan abortion doctor, or any other type ofdoctor for that matter, could obtain admit-ting privileges so quickly, and therewouldn’t have been a way even if the twodays hadn’t been weekend days. As thedistrict court found, it takes a minimum ofone to three months to obtain admittingprivileges and often much longer. It tookten months for one of the individual plain-tiffs to obtain admitting privileges. Ittook eight months for the other one to

obtain admitting privileges at one hospitaland nine months for her to obtain them atanother hospital. Moreover, hospitals arepermitted rather than required to grantsuch privileges, and some may be reluctantto grant admitting privileges to abortiondoctors because there is great hostility toabortion in Wisconsin, though as we’ll seehospitals have now granted such privilegesto a number of the state’s abortion doctors.

States that have passed laws similar toWisconsin’s have allowed much longer im-plementation time than a weekend—forexample, Mississippi allowed 76 days fromstatutory approval date to effective date,Alabama 83 days, and Texas 103 days.2012 Miss. Gen. Laws 331 (H.B. 1390),enjoined in Jackson Women’s Health Or-ganization v. Currier, 760 F.3d 448 (5thCir.2014); 2013 Ala. Legis. Serv.2013–79(H.B. 57), enjoined in Planned ParenthoodSoutheast, Inc. v. Bentley, 951 F.Supp.2d1280 (M.D.Ala.2013); 2013 Tex. Sess. LawServ. 2nd Called Sess. Ch. 1 (H.B. 2),upheld in Planned Parenthood of GreaterTexas Surgical Health Services v. Abbott,748 F.3d 583 (5th Cir.2014). True, thestatute had been passed by the Wisconsinlegislature weeks rather than days beforeit took effect, but weeks aren’t enoughtime in which to get admitting privileges,and until the governor signed the lawthere could be no certainty that it wouldbecome law; until then the abortion doc-tors would not know whether they’d berequired to obtain such privileges.

As of July 7 none of the doctors ateither the AMS clinic (in Milwaukee) orPlanned Parenthood’s Appleton clinic hadadmitting privileges at a hospital withinthe required 30–mile distance from theclinic, and neither did two of the doctors atPlanned Parenthood’s Milwaukee clinic.On the date of oral argument of the appealfrom the grant of the preliminary injunc-tion—almost five months after the law


would have taken effect had it not been forthat injunction and the temporary re-straining order that preceded it—the ap-plication of one of the doctors for admit-ting privileges had been denied and noneof the applications of the others had beengranted. Had enforcement of the statutenot been stayed, two of the state’s fourabortion clinics—the one in Appleton (theonly one north of Milwaukee) and one ofthe Milwaukee clinics—would have had toshut down because none of their doctorshad admitting privileges at a hospital with-in the prescribed radius; and the capacityof a third clinic to perform abortions wouldhave shrunk in half.

The state points out that abortion doc-tors have now had more than two yearssince the statute was enacted in which toobtain admitting privileges. But the legis-lature’s intention to impose the two-daydeadline, the effect of which would havebeen to force half the Wisconsin abortionclinics to close for months, is difficult toexplain save as a method of preventingabortions that women have a constitutionalright to obtain. The state tells us that‘‘there is no evidence the [Wisconsin] Leg-islature knew AMS physicians would beunable to comply with the Act.’’ That in-sults the legislators’ intelligence. Howcould they have thought that an abortiondoctor, or any doctor for that matter, couldobtain admitting privileges in so short atime as allowed? The clinics would havehad to close, and months would havepassed before they could reopen.

The fixing of such a short deadline forobtaining admitting privileges, a deadlinelikely to deny many women the right to anabortion for a period of months while theabortion doctors tried to obtain those privi-leges, could be justified consistently withthe Supreme Court’s abortion jurispru-dence only if there were reason to believethat the health of women who have abor-

tions is endangered if their abortion doc-tors don’t have admitting privileges. Thedistrict court correctly found that there isno reason to believe that. A woman whoexperiences complications from an abor-tion (either while still at the clinic wherethe abortion was performed or at homeafterward) will go to the nearest hospital,which will treat her regardless of whetherher abortion doctor has admitting privi-leges. As pointed out in a brief filed bythe American College of Obstetricians andGynecologists, the American Medical Asso-ciation, and the Wisconsin Medical Society,‘‘it is accepted medical practice for hospi-tal-based physicians to take over the careof a patient and whether the abortion pro-vider has admitting privileges has no im-pact on the course of the patient’s treat-ment.’’ As Dr. Serdar Bulun, the expertwitness appointed in this case by the dis-trict judge under Fed.R.Evid. 706, testi-fied, the most important factor would notbe admitting privileges, but whether therewas a transfer agreement between theclinic and the hospital. As we’ve said,abortion doctors in Wisconsin are requiredto have such transfer agreements. SeeWis. Admin. Code Med. § 11.04(1)(g).The treating doctor at the hospital proba-bly would want to consult with the doctorwho had performed the abortion, but forsuch a consultation the abortion doctorwould not need admitting privileges.

As it happens, complications from anabortion are both rare and rarely danger-ous—a fact that further attenuates theneed for abortion doctors to have admit-ting privileges. Two studies cited in theamicus curiae brief filed by the AmericanCollege of Obstetricians and Gynecologistset al. and credited by the district judge—Tracy A. Weitz et al., ‘‘Safety of AspirationAbortion Performed by Nurse Practition-ers, Certified Nurse Midwives, and Physi-cian Assistants Under a California LegalWaiver,’’ 103 Am. J. Public Health 454,


457–58 (2013), and Kelly Cleland et al.,‘‘Significant Adverse Events and OutcomesAfter Medical Abortion,’’ 121 Obstetrics &Gynecology 166, 169 (2013)—find that com-plications occur in only 1 out of 112 physi-cian-performed first-trimester aspirationabortions (the most common type of surgi-cal abortion), and that 94 percent of thosecomplications are ‘‘minor.’’ Weitz et al.,supra, at 457–58 tab. 2. For medical abor-tion (abortion by pill), the rate of complica-tions is only 1 in 153. Cleland et al.,supra, at 169 tab. 2. The official Wisconsinfigure for 2013 is even lower: 1 complica-tion per 404 abortions of all types. Andfinally only 1 in 1937 physician-conductedaspiration abortions result in major com-plications (a category which includes hospi-tal admissions), and 1 in 1732 medicalabortions require hospital admission.Weitz et al., supra, at 456, 458–59; Clelandet al., supra, at 169 tab. 2.

These studies have found that the rateof complications is below 1 percent; in thecase of complications requiring hospital ad-missions it is one-twentieth of 1 percent.The rate of complications for second-tri-mester surgical abortions is slightly high-er—1.3 percent. Anna C. Frick et al.,‘‘Effect of Prior Cesarean Delivery on Riskof Second–Trimester Surgical AbortionComplications,’’ 115 Obstetrics & Gynecol-ogy 760 (2010). In the five-year period2009 to 2013, only 12 women who hadabortions at clinics in Wisconsin experi-enced complications requiring transferfrom clinic to hospital. Fifteen additionalwomen who had received abortions at aPlanned Parenthood clinic and left the clin-ic without apparent complications latersought treatment at a hospital. The rec-ord does not contain a comparable figurefor the AMS clinic. There is no evidencethat any of these women received inade-quate hospital care because the doctorswho had performed their abortions lackedadmitting privileges.

One doctor with extensive experience inobstetrics and gynecology told about acase in which a woman with a complicationfrom an abortion might, he thought, haveavoided a hysterectomy if her abortiondoctor had called the hospital or had hadadmitting privileges. That is the only evi-dence in the record that any woman whoseabortion resulted in a medical complicationhas ever, anywhere in the United States,been made worse off by being handed overby her abortion doctor to a gynecologist,or other specialist with relevant expertise,employed by the hospital to which she’staken. And the example doesn’t actuallyhave anything to do with admitting privi-leges. The abortion doctor didn’t needadmitting privileges at a hospital in orderto call an ambulance to take his patient tothe nearest hospital, or to communicatewith the treating doctor at the hospital—neither of which he did. As the districtjudge found, in the case of abortion ‘‘anybenefit of admitting privileges in terms ofcontinuity of care is incrementally small.’’

And as noted, Wisconsin abortion clin-ics—uniquely, it appears, among outpa-tient providers of medical services in Wis-consin—are required by law to adopttransfer protocols intended to assureprompt hospitalization of any abortion pa-tient who experiences complications seri-ous enough to require hospitalization. SeeWis. Admin. Code Med. § 11.04(1)(g).

The state presented no other evidence ofcomplications from abortions in Wisconsinthat were not handled adequately by thehospitals in the state. And no documenta-tion of a medical need for requiring abor-tion doctors to obtain admitting privilegeshad been presented to the Wisconsin legis-lature when it was deliberating on the billthat became the statute challenged in thiscase. The only medical evidence that hadbeen submitted to the legislature had come


from a doctor representing the WisconsinMedical Society—and she opposed requir-ing that abortion doctors obtain admittingprivileges. The only testimony presentedto the legislature that admitting privilegesare important to continuity of care waspresented by a representative of WisconsinRight to Life who happens not to be adoctor. Indeed the legislative delibera-tions virtually ignored the provision con-cerning admitting privileges, focusing in-stead on another provision—a requirementnot challenged in this suit that a womanseeking an abortion obtain an ultrasoundexamination of her uterus first (if shehadn’t done so already), which might in-duce her to change her mind about havingan abortion. Wis. Stat.§ 253.10(3)(c)(1)(gm).

No other procedure performed outside ahospital, even one as invasive as a surgicalabortion, is required by Wisconsin law tobe performed by doctors who have admit-ting privileges at hospitals within a speci-fied radius of where the procedure is per-formed. And that is the case even forprocedures performed when the patient isunder general anesthesia, and even thoughmore than a quarter of all surgical opera-tions in the United States are now per-formed outside of hospitals. Karen A.Cullen et al., ‘‘Ambulatory Surgery in theUnited States, 2006,’’ Centers for DiseaseControl and Prevention: National HealthStatistics Reports No. 11, Sept. 4, 2009, p.5, www.cdc.gov/nchs/data/nhsr/nhsr011.pdf(visited Nov. 21, 2015, as was the otherwebsite cited in this opinion). And that istrue even for such gynecological proce-dures as diagnostic dilation and curettage(D & C) (removal of tissue from the insideof the uterus), hysteroscopy (endoscopy ofthe uterus), and surgical completion ofmiscarriage (surgical removal of fetal tis-sue remaining in the uterus after a miscar-riage, which is a spontaneous abortion

rather than one medically induced)—pro-cedures medically similar to abortion.

Dr. John Thorp, Jr., an expert witnessfor the defendants, testified that abortionis more dangerous than D & C or hyster-oscopy because there is increased bloodflow during a pregnancy. But one of theplaintiffs’ experts, Dr. Douglas Laube,countered that a pregnant uterus respondsbetter to treatments to stop bleeding, mak-ing the risk of the procedures roughly thesame. The district judge was entitled tocredit Laube’s testimony over Thorp’s, andcredit too the studies placed in evidencethat showed how rare major complicationsof both hysteroscopy and second-trimestersurgical abortion are. See Morris Wort-man et al., ‘‘Operative Hysteroscopy in anOffice–Based Surgical Setting: Review ofPatient Safety and Satisfaction in 414Cases,’’ 20 J. Minimally Invasive Gyne-cology 56 (2013); T.C. van Kerkvoorde etal., ‘‘Long-term Complications of OfficeHysteroscopy: Analysis of 1028 Cases,’’ 19id. 494 (2012); Frick et al., supra.

Dr. Thorp acknowledged, moreover, thatadmitting privileges are no more impor-tant for abortions than for other outpatientprocedures. Yet Wisconsin appears to beindifferent to complications of any otheroutpatient procedures, even when they arefar more likely to produce complicationsthan abortions are. For example, the rateof complications resulting in hospitalizationfrom colonoscopies done for screening pur-poses is four times the rate of complica-tions requiring hospitalization from first-trimester abortions. See Cynthia W. Koet al., ‘‘Serious Complications Within 30Days of Screening and Surveillance Colo-noscopy Are Uncommon,’’ 8 Clinical Gas-troenterology & Hepatology 166, 171–72(2010). Operative colonoscopy has an evenhigher rate of major complications, makingit riskier than even second-trimester abor-tions. See Jerome D. Waye et al., ‘‘Colo-


noscopy: A Prospective Report of Compli-cations,’’ 15 J. Clinical Gastroenterology347 (1992). It is conceivable that becauseof widespread disapproval of abortion,abortions and their complications may beunderreported—some women who experi-ence them and are hospitalized may tellthe hospital staff that the complicationsare from a miscarriage. But there is noevidence of significant or widespread un-derreporting.

The defendants argue that obtaining ad-mitting privileges operates as a kind ofGood Housekeeping Seal of Approval for adoctor. True; but obtaining the seal doesnot require that the hospital in which thedoctor obtains the privileges be within 30miles of his clinic. See, e.g., Women’sHealth Center of West County, Inc. v.Webster, 871 F.2d 1377, 1378–81 (8th Cir.1989). Several abortion doctors in Wiscon-sin who lack admitting privileges at hospi-tals within the prescribed radius havethem—their Good Housekeeping Seals ofApproval—at more distant hospitals fromtheir clinic yet are not excused by thestatute from having to obtain the identicalprivileges from a hospital within the 30–mile radius.

The defendants argue that admittingprivileges improve continuity of care. Butnothing in the statute requires an abortiondoctor who has admitting privileges tocare for a patient who has complicationsfrom an abortion. He doesn’t have toaccompany her to the hospital, treat herthere, visit her, call her, etc. The statutealso does not distinguish between surgicaland medical abortions. The latter termrefers to an abortion induced by pills givento the patient by her doctor: she takes onepill in the clinic, goes home, and takes anadditional pill or pills one or two days laterto complete the procedure. Her homemay be far from any hospital that is within30 miles of her doctor’s clinic, but close to

a hospital farther from the clinic. If shecalls an ambulance the paramedics arelikely to take her to the nearest hospital—a hospital at which her abortion doctor isunlikely to have admitting privileges.Likewise in the case of surgical abortionswhen complications occur not at the clinicduring or immediately after the abortionbut after the patient has returned home.Because of distance, she may lack readyaccess to hospitals near the clinic at whichthe abortion was performed. She may livenear a hospital, but not a hospital at whichthe doctor who performed her abortion hasadmitting privileges.

We can imagine an argument that whatWisconsin did in this case was to make theregulation of the treatment of abortioncomplications simply the first step on thepath to a regulation of all potentially seri-ous complications. But the defendantshave not argued this; nor is it plausiblethat the state would begin such an effortwith a procedure that has a very low rateof serious complications. The statute hasbeen on the books for more than twoyears, yet there is no indication that thelegislature has given any consideration torequiring admitting privileges for any doc-tors other than abortion providers.

The district judge had remarked ingranting the preliminary injunction thatwhile he would ‘‘await trial on the issue,TTT the complete absence of an admittingprivileges requirement for [other] clinical[i.e., outpatient] procedures including forthose with greater risk [than abortion] iscertainly evidence that [the] WisconsinLegislature’s only purpose in its enactmentwas to restrict the availability of safe, legalabortion in this State, particularly giventhe lack of any demonstrable medical ben-efit for its requirement either presented tothe Legislature or [to] this court.’’Planned Parenthood of Wisconsin, Inc. v.Van Hollen, No. 13–cv–465–wmc, 2013 WL


3989238, at *10 n. 26 (W.D.Wis. Aug. 2,2013) (emphasis in original). Confirmato-ry evidence is the statutory two-day dead-line for obtaining admitting privileges inorder to be allowed to perform abortions,though that deadline is of course no longeroperable. And we can’t forbear to men-tion the weird private civil remedy forviolations: The father, or a grandparent,of the ‘‘aborted unborn child’’ is entitled toobtain damages, including for emotionaland psychological distress, if the abortionwas performed by a doctor who lackedadmitting privileges. Wis. Stat.§ 253.095(4)(a). Were the law aimed atprotecting the mother’s health, as the statecontends, a violation of the law could harmthe fetus’s father or grandparent only ifthe mother were injured physically or psy-chologically as a result of her abortiondoctor’s lacking the required admittingprivileges. But the statute requires noproof of any injury of any kind to themother to entitle the father or grandpar-ent to damages upon proof of a violation ofthe statute. Wis. Stat. § 253.095(4).

[1, 2] Until and unless Roe v. Wade isoverruled by the Supreme Court, a statutelikely to restrict access to abortion with nooffsetting medical benefit cannot be held tobe within the enacting state’s constitution-al authority. The courts have ‘‘an inde-pendent constitutional duty to review [alegislature’s] factual findings where consti-tutional rights are at stake.’’ Gonzales v.Carhart, 550 U.S. 124, 163–65, 127 S.Ct.1610, 167 L.Ed.2d 480 (2007). The Wis-consin statute does not ‘‘further[ ] the le-gitimate interest’’ of the state in advancingwomen’s health, and it was not ‘‘reasonablefor [the legislature] to think’’ that it would.Id. at 146, 160, 127 S.Ct. 1610.

Were it not for the injunctions issued bythe district court (and the temporary re-straining order that preceded them), thestatute would have substantially curtailed

the availability of abortion in Wisconsin,without conferring an offsetting benefit (orindeed any benefit) on women’s health.Virtually all abortions in Wisconsin areperformed at the four abortion clinics (thethree Planned Parenthood clinics and theAMS clinic); no other clinics performabortions, and hospitals perform only asmall fraction of the abortions performedin the state. With the preliminary andnow the permanent injunction having liftedthe deadline for obtaining admitting privi-leges, doctors at the three Planned Parent-hood abortion clinics (Milwaukee, Madison,and Appleton) have been able to obtainadmitting privileges at nearby hospitals.But the two doctors at the fourth clinic,AMS, have been unable to obtain suchprivileges at any hospital even though 17hospitals are within a 30–mile radius of theclinic.

Not that its doctors haven’t tried toobtain the privileges. The district courtfound credible their testimony that thechances of their being granted admittingprivileges are ‘‘slim to none.’’ The reasonis that almost all of their practice consistsof performing abortions and they thereforelack recent experience in performing inpa-tient medical procedures for which hospi-tals would grant admitting privileges.Nor is any of their clinical practice peerreviewed, which hospitals also make a con-dition of granting admitting privileges.One of the doctors couldn’t even obtain anapplication for admitting privileges at Au-rora–Sinai Hospital, because he couldn’tshow that he’d ‘‘treated patients in a hospi-tal or appropriate outpatient setting inwhich the Practitioner’s care was subjectto evaluation through peer review accept-able to the Metro Credentials Committee,in the previous twelve (12) months.’’Froedtert Hospital likewise rejected hisapplication, because he provided neither‘‘evidence of recent (with-in the past 2


years) inpatient activity’’ nor ‘‘an evalua-tion of [his] ability to provide care forpatients in the inpatient environment.’’The other AMS doctor was also rejectedby Aurora–Sinai, which told him he wasineligible to obtain full admitting privilegesbecause he would be unable to admit therequired minimum of 20 patients per year,and that he could not obtain courtesy privi-leges (which differ from full privileges inallowing a doctor to admit only a very fewpatients) without already having staff priv-ileges at another hospital. Another hospi-tal, St. Joseph’s Community Hospital ofWest Bend, requires applicants for obstet-rics/gynecology admitting privileges tohave delivered 100 babies in the previoustwo years, by which of course they meanlive babies; and delivering live babies isnot what abortion doctors do.

Moreover, all the hospitals require, as acondition to obtaining admitting privileges,demonstrated competence in performingthe particular procedures that the doctorseeks to perform at the hospital on pa-tients that he admits. Although a defenseexpert from Columbia St. Mary’s Hospitaltestified that the hospital would evaluate aphysician’s quality without requiring a rec-ord of inpatient care, he acknowledgedthat a doctor seeking admitting privilegeswould have to demonstrate competence toperform the specific procedures for whichhe sought the privileges. Hospitals areentitled to demand proof that doctorsseeking to work at the hospital be able toperform the procedures that they want toperform there. But to condition the grantof admitting privileges on being qualifiedto perform procedures that AMS’s abor-tion doctors never perform is to bar themfrom performing abortions.

So, as the district judge found, if thestatute is valid neither of the AMS doc-tors will be allowed to perform any abor-tions, and the clinic will have to shut

down unless it can recruit and retain oth-er doctors—doctors who have or canreadily obtain admitting privileges withinthe prescribed radius of the clinic. But itis difficult to hire such doctors, not onlybecause it’s difficult for abortion doctorsto obtain admitting privileges (especiallywithin a prescribed radius of the clinic)but also because of the vilification,threats, and sometimes violence directedagainst abortion clinics and their person-nel in states, such as Wisconsin, in whichthere is intense opposition to abortion.

AMS is particularly vulnerable because,as we’re about to see, it’s the only abortionclinic in the state that performs late-termabortions. But were the statute to beupheld, Planned Parenthood’s clinics couldalso face having to close or significantlyreduce the abortions they perform, withina few years, despite currently having doc-tors with admitting privileges. Hospitalsgenerally require that a doctor, to main-tain his admitting privileges, be responsi-ble for admitting a specified minimumnumber of patients annually. Because ofthe very low rate of complications fromabortions that require hospitalization, therequired quotas may be difficult to meet.

One might think (setting that last pointto one side for the moment) that thePlanned Parenthood abortion clinic in Mil-waukee would have adequate capacity toserve all women in the Milwaukee areawho decide to have an abortion, in whichevent the demise of AMS would be no bigdeal. Not so. Of some 6462 abortionsperformed in Wisconsin in 2013 (the latestyear for which there are complete figures),5800 were performed in abortion clinics inthe state (see Wisconsin Department ofHealth Services, ‘‘Reported Induced Abor-tions in Wisconsin, 2013,’’ Aug. 2014, www.dhs.wisconsin.gov/publications/p4/p45360–13.pdf), and 2500 of those were performedby AMS. (Presumably the 662 abortions


not performed in abortion clinics were per-formed in hospitals.)

The Planned Parenthood clinic in Mil-waukee would have to expand staff andfacilities to accommodate such an influx(the Planned Parenthood clinic in Appletonis more than a hundred miles from Mil-waukee, and the Madison clinic eightymiles, distances that would impose hard-ship on some women who live close toMilwaukee and are seeking abortions), andthis would be costly and could even beimpossible given the difficulty of recruitingabortion doctors. The district judge ac-cepted uncontradicted testimony thatPlanned Parenthood could not absorb theadditional demand for abortions, and theresult (of demand exceeding supply) wouldbe an 8 to 10 week delay in obtaining anabortion. Some women would have to for-go first-trimester abortions and insteadget second-trimester ones, which are moreexpensive and present greater healthrisks. Other women would be unable toobtain any abortion, because the delaywould push them past the 18.6–weeks–LMP (‘‘last menstrual period,’’ which islikely to precede conception by a couple ofweeks) deadline for the Planned Parent-hood clinics’ willingness to perform abor-tions. Only AMS will perform abortionsbeyond that limit (up to 22 and occasional-ly 24 weeks of pregnancy). Women seek-ing lawful abortions that late in their preg-nancy, either because of the waiting list orbecause they hadn’t realized their need foran abortion sooner, would be unable toobtain abortions in Wisconsin.

AMS performs about 250 late-termabortions each year (and that’s without theadditional patients who would be pushedpast 18.6 weeks by an 8 to 10 week waitinglist). And, to repeat, it’s the only abortionclinic in Wisconsin that performs suchabortions. Although the state points outthat these late-term abortions currently

constitute fewer than one percent of theabortions performed in the state, ‘‘theanalysis does not end with the one percentof women upon whom the statute operates;it begins there.’’ Planned Parenthood ofSoutheastern Pennsylvania v. Casey, su-pra, 505 U.S. at 894, 112 S.Ct. 2791 (plu-rality opinion). For the longer the waitinglist for an abortion, the more women whowant to have early-term abortions will per-force end up having late-term ones, whichare more dangerous.

No problem, argues the state, since Chi-cago is only 90 miles from Milwaukee, andthere is at least one clinic in Chicago thatwill perform abortions after 19 weeks.The logic of the state’s position is that itcould forbid both abortion clinics in Mil-waukee to perform abortions on anyoneliving in that city, given that the Chicagoclinics are only about 90 miles away (andone clinic, in the northern suburbs of Chi-cago, is only 74 miles from Milwaukee’scity center).

[3] The state’s position is untenable.As we said in Ezell v. City of Chicago, 651F.3d 684, 697 (7th Cir.2011), the proposi-tion that

the harm to a constitutional right [canbe] measured by the extent to which itcan be exercised in another jurisdictionTTT [is] a profoundly mistaken assump-tion. In the First Amendment context,the Supreme Court long ago made itclear that ‘‘one is not to have the exer-cise of his liberty of expression in appro-priate places abridged on the plea that itmay be exercised in some other place.’’Schad v. Borough of Mt. Ephraim, 452U.S. 61, 76–77, 101 S.Ct. 2176, 68L.Ed.2d 671 (1981), quoting Schneider v.New Jersey, 308 U.S. 147, 163, 60 S.Ct.146, 84 L.Ed. 155 (1939). The sameprinciple applies here. It’s hard toimagine anyone suggesting that Chicagomay prohibit the exercise of a free-


speech or religious-liberty right withinits borders on the ground that thoserights may be freely enjoyed in the sub-urbs.

[4] Or as the Supreme Court put it inMissouri ex rel. Gaines v. Canada, 305U.S. 337, 350, 59 S.Ct. 232, 83 L.Ed. 208(1938),

the obligation of the State to give theprotection of equal laws can be per-formed only where its laws operate, thatis, within its own jurisdiction. It isthere that the equality of legal rightmust be maintained. That obligation isimposed by the Constitution upon theStates severally as governmental enti-ties—each responsible for its own lawsestablishing the rights and duties of per-sons within its borders. It is an obli-gation the burden of which cannot becast by one State upon another, and noState can be excused from performanceby what another State may do or fail todo.

See also Jackson Women’s Health Organi-zation v. Currier, supra, 760 F.3d at 457–58. It’s true that we said in A Woman’sChoice–East Side Women’s Clinic v. New-man, 305 F.3d 684, 688 (7th Cir.2002), thatthe undue burden standard should be ap-plied ‘‘to the nation as a whole, rather thanone state at a time.’’ But the statement,though in seeming tension with Gainesand Jackson, has nothing to do with look-ing at the availability of abortion servicesacross state lines. Instead the court wasworried that district judges in differentstates might reach different conclusionsabout the constitutionality of nearly identi-cal statutes.

It’s also true, though according to thecases just quoted irrelevant, that a 90–miletrip is no big deal for persons who own acar or can afford an Amtrak or Greyhoundticket. But more than 50 percent of Wis-consin women seeking abortions have in-

comes below the federal poverty line andmany of them live in Milwaukee (and somenorth or west of that city and so evenfarther away from Chicago). For them around trip to Chicago, and finding a placeto stay overnight in Chicago should theynot feel up to an immediate return toWisconsin after the abortion, may be pro-hibitively expensive. The State of Wiscon-sin is not offering to pick up the tab, orany part of it. These women may also beunable to take the time required for theround trip away from their work or thecare of their children. The evidence attrial, credited by the district judge, wasthat 18 to 24 percent of women who wouldneed to travel to Chicago or the surround-ing area for an abortion would be unable tomake the trip.

[5, 6] An abortion-restricting statutesought to be justified on medical groundsrequires not only reason to believe (herelacking, as we have seen) that the medicalgrounds are valid, but also reason to be-lieve that the restrictions are not dispro-portionate, in their effect on the right toan abortion, to the medical benefits thatthe restrictions are believed to confer andso do not impose an ‘‘undue burden’’ onwomen seeking abortions. See PlannedParenthood of Southeastern Pennsylvaniav. Casey, supra, 505 U.S. at 874, 877, 900–01, 112 S.Ct. 2791 (plurality opinion); Gon-zales v. Carhart, supra, 550 U.S. at 146,157–58, 127 S.Ct. 1610; Stenberg v. Car-hart, 530 U.S. 914, 930, 938, 120 S.Ct. 2597,147 L.Ed.2d 743 (2000). To determinewhether the burden imposed by the stat-ute is ‘‘undue’’ (excessive), the court must‘‘weigh the burdens against the state’s jus-tification, asking whether and to what ex-tent the challenged regulation actually ad-vances the state’s interests. If a burdensignificantly exceeds what is necessary toadvance the state’s interests, it is ‘undue,’ ’’Planned Parenthood Arizona, Inc. v.


Humble, 753 F.3d 905, 913 (9th Cir.2014),which is to say unconstitutional. The fee-bler the medical grounds (in this case, theyare nonexistent), the likelier is the burdenon the right to abortion to be dispropor-tionate to the benefits and therefore exces-sive.

There are those who would criminalizeall abortions, thus terminating the consti-tutional right asserted in Roe and Caseyand a multitude of other decisions. Andthere are those who would criminalize allabortions except ones that terminate apregnancy caused by rape or are neces-sary to protect the life or (in some ver-sions) the health of the pregnant woman.But what makes no sense is to abridge theconstitutional right to an abortion on thebasis of spurious contentions regardingwomen’s health—and the abridgment chal-lenged in this case would actually endan-ger women’s health. It would do that byreducing the number of abortion doctors inWisconsin, thereby increasing the waitingtime for obtaining an abortion, and thatincrease would in turn compel some wom-en to defer abortion to the second trimes-ter of their pregnancy—which the studieswe cited earlier find to be riskier than afirst-trimester abortion. For abortionsperformed in the first trimester the rate ofmajor complications is 0.05–0.06 percent(that is, between five one-hundredths of 1percent and six one-hundredths of 1 per-cent). It is 1.3 percent for second-trimes-ter abortions—between 22 and 26 timeshigher.

The burden on abortion imposed by theWisconsin statute is greater than in thecases in which the Fourth and Fifth Cir-cuits have upheld similar admitting privi-leges requirements, because the plaintiffsin those cases failed to satisfy the courtsthat the challenged statutes would lead toa substantial decline in the availability ofabortion. In both Planned Parenthood of

Greater Texas Surgical Health Services v.Abbott, supra, 748 F.3d at 597–98, andGreenville Women’s Clinic v. Bryant, 222F.3d 157, 162, 170 (4th Cir.2000), thecourts decided that the evidence compelledonly a conclusion that one clinic in eachstate would close as a result of the statuteand each of those two clinics performedonly a small proportion of its state’s abor-tions.

The Fifth Circuit also upheld anotherrequirement in the same statute—thatabortion clinics must meet the standardsfor ambulatory surgical centers—despitethe evidence that as a result of this re-quirement only eight clinics would surviveout of the more than forty in existencewhen the statute was enacted. WholeWoman’s Health v. Cole, 790 F.3d 563, 578(5th Cir.2015), cert. granted, ––– U.S.––––, 136 S.Ct. 499, 193 L.Ed.3d 364, 2015WL 5176368 (Nov. 13, 2015). The courtremarked the absence of evidence that theremaining clinics could not expand theircapacity to compensate for the closing ofmore than three-fourths of them, id. at590, although one wouldn’t think it neces-sary to parade evidence that the remainingclinics would find it extremely difficult toquadruple their capacity to provide abor-tions, which would require, in the face offierce opposition to abortion clinics and thedifficulty of relocating abortion doctorsfrom the closed clinics, extensive physicalenlargement to house additional patientsand doctors.

A great many Americans, including anumber of judges, legislators, governors,and civil servants, are passionately op-posed to abortion—as they are entitled tobe. But persons who have a sophisticatedunderstanding of the law and of the Su-preme Court know that convincing theCourt to overrule Roe v. Wade andPlanned Parenthood of SoutheasternPennsylvania v. Casey is a steep uphill


fight, and so some of them proceed indi-rectly, seeking to discourage abortions bymaking it more difficult for women to ob-tain them. They may do this in the nameof protecting the health of women whohave abortions, yet as in this case thespecific measures they support may dolittle or nothing for health, but ratherstrew impediments to abortion. This istrue of the Texas requirement, upheld bythe Fifth Circuit in the Whole Woman’scase now before the Supreme Court, thatabortion clinics meet the standards for am-bulatory surgical centers—a requirementthat if upheld will permit only 8 of Texas’sabortion clinics to remain open, out ofmore than 40 that existed when the lawwas passed. And comparably in our casethe requirement of admitting privilegescannot be taken seriously as a measure toimprove women’s health because the trans-fer agreements that abortion clinics makewith hospitals, plus the ability to summonan ambulance by a phone call, assure theaccess of such women to a nearby hospitalin the event of a medical emergency.

Opponents of abortion reveal their trueobjectives when they procure legislationlimited to a medical procedure—abortion—that rarely produces a medical emergency.A number of other medical procedures arefar more dangerous to the patient thanabortion, yet their providers are not re-quired to obtain admitting privileges any-where, let alone within 30 miles of wherethe procedure is performed. Nor is itlikely to have been an accident that theWisconsin legislature, by making its lawrequiring admitting privileges effective im-mediately, would have prevented most ofthe abortion doctors in the state from per-forming any abortions for months (for itusually takes months to obtain admittingprivileges) had the district court not issueda temporary restraining order followed im-mediately by a preliminary injunction.

In Planned Parenthood of Greater Tex-as the court excoriated our opinion up-holding the preliminary injunction in thepresent case, on the ground that we hadinsisted on evidence that requiring abor-tion doctors to have admitting privilegeswould improve women’s health. 748 F.3dat 596. The Fifth Circuit said that the‘‘first step in the analysis of an abortionregulation TTT is rational basis review, notempirical basis review.’’ Id. (emphases inoriginal). Indeed it said ‘‘there is ‘never arole for evidentiary proceedings’ under ra-tional basis review.’’ Id. We take that tobe a reference to the motive for ‘‘rationalbasis’’ review of state laws—namely a re-luctance by the federal judiciary to invali-date state laws that even if difficult todefend or explain by reference to soundpublic policy do not cause harm seriousenough to be classified as depriving per-sons of life, liberty, or property, howeverbroadly those terms are understood.

But a statute that curtails the constitu-tional right to an abortion, such as theWisconsin and Texas statutes, cannot sur-vive challenge without evidence that thecurtailment is justifiable by reference tothe benefits conferred by the statute. Thestatute may not be irrational, yet may stillimpose an undue burden—a burden exces-sive in relation to the aims of the statuteand the benefits likely to be conferred byit—and if so it is unconstitutional.

The evidence of benefits that was pre-sented to the Texas legislature and dis-cussed by the Fifth Circuit was weak; inour case it’s nonexistent. The principalwitness for the State of Wisconsin, Dr.Thorp, mentioned earlier, testified that thedeath rate for women who undergo abor-tions is the same as for other pregnantwomen. But he could not substantiatethat proposition and admitted that bothrates are very low. His expert reportstates that there are ‘‘increased risks of


death for women electing [abortion] com-pared to childbirth,’’ but the studies hecited measured long-term mortality ratesrather than death resulting from an abor-tion, and also failed to control for socioeco-nomic status, marital status, or a variety ofother factors relevant to longevity. SeeDavid Reardon & Priscilla Coleman,‘‘Short and Long Term Mortality RatesAssociated with First Pregnancy Outcome:Population Register Based Study for Den-mark 1980–2004,’’ 18 Medical ScienceMonitor PH71, PH75 (2012); Coleman etal., ‘‘Reproductive History Patterns andLong–Term Mortality Rates: A Danish,Population–Based Record Linkage Study,’’23 European J. Public Health 569, 569,573 (2012). In contrast, the plaintiffs’ ex-pert Dr. Laube tendered a more apt studywhich concluded that the risk of deathassociated with childbirth is 14 times high-er than that associated with abortion. SeeElizabeth G. Raymond & David A. Grimes,‘‘The Comparative Safety of Legal InducedAbortion and Childbirth in the UnitedStates,’’ 119 Obstetrics & Gynecology 215(Feb.2012).

Dr. Thorp acknowledged that the num-ber of abortion providers is declining, butattributed this (again without substantia-tion) not to harassment but to our society’s‘‘progressing in its recognition of what con-stitutes human life.’’ And he agreed as wenoted earlier that admitting privileges areno more necessary for abortion than forother outpatient surgical procedures. Nei-ther Thorp nor any other witness for thedefendants was able to cite a case in whicha woman who had a complication from anabortion wasn’t properly treated for it be-cause her abortion doctor lacked admittingprivileges. The evidence was heavilyweighted against the defendants. We donot agree with the Fifth Circuit that evi-dence is irrelevant in a constitutional caseconcerning abortion.

The state insists that the plaintiffs’ med-ical expert and the neutral expert agreedwith it that admitting privileges would be agood thing for abortion doctors to have.But a fair interpretation of their testimonyis that a doctor’s admitting privileges areof value to a patient because they suggestthat the hospital that has granted themthinks well of the doctor and because hemay be able to expedite the admission of apatient who needs hospital care to thehospital in which the doctor has those priv-ileges. These witnesses did not testifythat an abortion doctor who lacks admit-ting privileges is a danger to his patients.The neutral expert, Dr. Bulun, said thatprivileges could have advantages, but hewas comparing a doctor with privileges toone without privileges; he was not askedwhether a shortage of abortion doctors,though such abortion doctors as therewere all had privileges, would be prefera-ble to there being enough abortion doctorsbut not all with admitting privileges. Headded that ‘‘if there’s a well-establishedprocedure for a transfer agreement, in mymind that would be the most importantfactor to ensure good quality of care.’’There is no evidence that transfer agree-ments provide inferior protection to thehealth of women undergoing abortion com-pared to admitting privileges. When thetransfer agreements and the availability ofemergency-room care and the rarity ofcomplications of abortion that require hos-pitalization are compared to the impactthis statute would have on access to abor-tion in Wisconsin, it is apparent that thedefendants have failed to make a dent inthe district court’s opinion granting thepermanent injunction sought by the plain-tiffs.

AFFIRMED

MANION, Circuit Judge, dissenting.

In June 2013, the Wisconsin legislatureintroduced a statute requiring abortion


doctors to have admitting privileges at anearby hospital. The statute was signedinto law the following month, and theplaintiffs obtained a preliminary injunctionfrom the district court, which we affirmed.Planned Parenthood of Wis., Inc. v. VanHollen, 738 F.3d 786 (7th Cir.2013). Thedistrict court then granted a permanentinjunction on the merits, finding that theadmitting-privileges requirement unconsti-tutionally infringed on a woman’s right toabortion. Planned Parenthood of Wis.,Inc. v. Van Hollen, 94 F.Supp.3d 949(W.D.Wis.2015). Relying on the novel le-gal standard crafted by the majority inVan Hollen, the district court reached thisresult by shifting the burden onto the stateto adduce empirical evidence justifying therationality of its regulation. Id. at 962–64.This was error. Under well-establishedSupreme Court precedent, the state mayconstitutionally regulate abortion so longas it has a rational basis to act and doesnot impose an undue burden. Gonzales v.Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610,167 L.Ed.2d 480 (2007). Because Wiscon-sin’s admitting-privileges requirement sat-isfies this standard, I dissent.

I

Between 2009 and 2013, at least nine-teen women who sought abortions atPlanned Parenthood clinics in Wisconsinsubsequently received hospital treatmentfor abortion-related complications.1 Sure-ly, no reasonable patient considering amedical procedure known to result in com-

plications—potentially even death—wouldregard state measures designed to mini-mize those risks as an imposition on herconstitutional rights. After all, patientsare more likely to undergo medical proce-dures when they know that discrete meas-ures have been taken by the state to re-duce the likelihood of harm. Recognizingthese basic facts, the four other federalappellate circuits that have examined simi-lar admitting-privilege requirements havefound or assumed a rational basis forthem. This is such common sense that itwould scarcely warrant mention in anyother context. But this case involves abor-tion, so all bets are off.

Safety is not a negligible concern in anyfield of healthcare. Abortion—which issubject to less regulatory oversight thanalmost any other area of medicine—bearsno exception. When we first reviewedWisconsin’s admitting-privileges require-ment, my concurrence cited numerous ex-amples of egregious ‘‘abortion care’’ instates across the nation. One article de-tailed the practices at former abortionistKermit Gosnell’s clinic in Pennsylvania,which included unlicensed personnel con-ducting gynecological examinations and ad-ministering painkillers. These practicesresulted in the death of a patient namedKarnamaya Mongar, who died after beinggiven an overdose of anesthesia and painmedication. Media reports also circulatedthat Dr. Gosnell physically assaulted andperformed a forced abortion on a minorand left fetal remains in a woman’s uterus,causing her excruciating pain.

1. See Dkt. 198 ¶ 11. The record also revealsthat, during that period, at least four patientswho received abortions at those clinics weretransferred from the clinics to a hospital byambulance for abortion-related complica-tions, and four women reported that they hadpost-abortion infections that resulted in treat-ment at a hospital. Id. ¶¶ 12–13. Additional-ly, between 2009 and 2014, at least eight AMSabortion patients were transferred directly

from AMS’s abortion clinic to a hospital totreat serious complications from an abortionprocedure performed by one of AMS’s physi-cians. Id. ¶ 26. During that same time peri-od, at least three AMS abortion patients suf-fered complications serious enough that ahysterectomy was required, resulting in thosepatients no longer being able to bear children.Id. ¶ 27.


Dr. Gosnell was ultimately convicted ofmurder for the deaths of three infantsdelivered alive but subsequently killed athis clinic. In light of the nationwide atten-tion that Dr. Gosnell’s shop of horrorsattracted, the Wisconsin State Assemblyacted swiftly to pass Act 37, including theadmitting-privileges requirement at issue,in order to protect the health and safety ofpregnant women who have chosen an abor-tion. This lawsuit followed.

Dr. Gosnell was able to run his opera-tion in a regulatory vacuum derived in nosmall part from the view held by some thatany regulation upon his practice was athreat to the constitutional rights of hispatients. Although we have recognizedthat doctors may bring suit on behalf oftheir abortion patients, it does not auto-matically follow that doctors and patientshave identical interests. The constitution-al right to privacy exists across the spec-trum of medical procedures, yet in no oth-er area of medicine may a doctor bring asuit on behalf of a patient solely becausethe doctor finds a safety regulation cum-bersome. Where state regulation imposeson doctors measures designed to improvepatient safety, doctor-patient interestsmay diverge. Because that is preciselythe case in this instance, we must look tothe regulation’s effect on the prospectivepatient, not to the inconvenience the regu-lation presents to the abortionist.

Rather than shift the burden to thestate to provide reasons it was justified toenact the law at issue, we are obligated touphold a law that regulates abortion wherethere is a rational basis to act so long asthe law does not have the effect of impos-ing an undue burden on a woman’s abilityto make the decision to choose abortion.Here, the court sets this burden of proofexactly backwards. Because Wisconsin’sadmitting-privileges requirement protectsthe health and safety of pregnant women

and does not constitute an undue burdenunder Casey, I would join the Fifth Cir-cuit’s merits decision in Planned Parent-hood of Greater Texas Surgical HealthServices v. Abbott, 748 F.3d 583 (5th Cir.2014), reh’g en banc denied, 769 F.3d 330(5th Cir.2014) (Abbott II ), which upheld afunctionally identical law on similar facts.All of these facts lead me to the conclusionthat the judgment of the district courtshould be reversed. For the reasons thatfollow, I dissent.

II

A. Wisconsin has a Rational Basis toprotect the health and safety ofpregnant women seeking an abor-tion.

The Supreme Court’s surviving abortioncases have repeatedly affirmed that thestate has a substantial interest in regulat-ing abortion in furtherance of its interestsin promoting the health and safety of preg-nant women. See, e.g., Gonzales v. Car-hart, 550 U.S. 124, 158, 163, 127 S.Ct. 1610,167 L.Ed.2d 480 (2007); Stenberg v. Car-hart, 530 U.S. 914, 931, 120 S.Ct. 2597, 147L.Ed.2d 743 (2000); Mazurek v. Arm-strong, 520 U.S. 968, 973, 117 S.Ct. 1865,138 L.Ed.2d 162 (1997) (per curiam);Planned Parenthood of Se. Pa. v. Casey,505 U.S. 833, 846, 878, 112 S.Ct. 2791, 120L.Ed.2d 674 (1992) (plurality); Roe v.Wade, 410 U.S. 113, 150, 163, 93 S.Ct. 705,35 L.Ed.2d 147 (1973). So have ours.See, e.g., Karlin v. Foust, 188 F.3d 446,478 (7th Cir.1999); Planned Parenthood ofWis. v. Doyle, 162 F.3d 463, 467 (7th Cir.1998).

Although the court purports to be con-sistent with these cases, in reality, its deci-sion undermines the state’s interest recog-nized within them. By doing so, the courtsets a dangerous precedent that jeopard-izes the ability of states to enact lawsdesigned to curb risks to the safety and


welfare of patients who choose to undergoinvasive medical procedures—including thewomen whom this admitting-privileges lawprotects. A brief reminder of the Su-preme Court’s repeated emphasis on thestate’s interest in protecting the healthand safety of pregnant women who havechosen abortion is apparently necessary.

B. The Supreme Court’s abortion de-cisions

In Roe, the Court recognized that astate has a ‘‘legitimate interest in seeing toit that abortion, like any other medicalprocedure, is performed under circum-stances that insure maximum safety forthe patient.’’ Roe, 410 U.S. at 150, 93S.Ct. 705. The Court concluded that thestate’s legitimate interest in regulatingabortion to protect maternal health ‘‘obvi-ously extends at least to [regulating] theperforming physician and his staff, to thefacilities involved, to the availability of af-ter-care, and to adequate provision for anycomplication or emergency that mayarise.’’ Id. Roe left no doubt that the state‘‘may regulate the abortion procedure tothe extent that the regulation reasonablyrelates to the preservation and protectionof maternal health.’’ Id. at 163, 93 S.Ct.705.

In Casey, the Court abandoned Roe’srigid trimester framework. Casey, 505U.S. at 872–76, 112 S.Ct. 2791. But notbefore reiterating that ‘‘the State has legit-imate interests from the outset of thepregnancy in protecting the health of thewoman and the life of the fetus that maybecome a child.’’ Id. at 846, 112 S.Ct.2791. Further, the Court added that, ‘‘[a]swith any medical procedure, the State mayenact regulations to further the health orsafety of a woman seeking an abortion.’’Id. at 878, 112 S.Ct. 2791.

Five years later, in Mazurek, the Courtrejected a challenge brought by abortion

providers to a state law that restricted theprovision of abortions only to licensed phy-sicians. Mazurek, 520 U.S. at 976, 117S.Ct. 1865. By so ruling, the Court re-called that its ‘‘cases reflect the fact thatthe Constitution gives the States broadlatitude to decide that particular functionsmay be performed only by licensed profes-sionals.’’ Id. at 973, 117 S.Ct. 1865 (cita-tion omitted).

Shortly thereafter, in Stenberg, theCourt underscored Roe and Casey ’s com-mitment to the health and safety of preg-nant women by striking down a federal lawthat made partial-birth abortion illegal be-cause it failed to contain a ‘‘health excep-tion TTT ‘for the preservation of the life orhealth of the mother.’ ’’ Stenberg, 530 U.S.at 938, 120 S.Ct. 2597 (citation omitted).In laying the foundation for its decision,the Court first recalled that it has ‘‘re-peatedly invalidated statutes that in theprocess of regulating the methods of abor-tion, imposed significant health risks.’’ Id.at 931, 120 S.Ct. 2597 (emphasis omitted).Channeling Casey, the Court then summa-rized the state’s interest in the health ofpregnant women as follows: ‘‘ ‘where it isnecessary, in appropriate medical judg-ment for the preservation of the life orhealth of the mother,’ [ ] this Court hasmade clear that a State may promote butnot endanger a woman’s health when itregulates the methods of abortion.’’ Id.(citations omitted).

Most recently, in Gonzales, the Courtconsolidated these principles, acknowl-edging that ‘‘[w]here it has a rational basisto act, and it does not impose an undueburden, the State may use its regulatorypower’’ to regulate abortion. Gonzales 550U.S. at 158, 127 S.Ct. 1610. Gonzales heldthat state and federal lawmakers have‘‘wide discretion to pass legislation in areaswhere there is medical and scientific un-certainty.’’ Id. at 163, 127 S.Ct. 1610 (cita-


tions omitted). In short, over four dec-ades of Supreme Court decisions establishthat the state has a legitimate interest inpromoting the health and safety of preg-nant women seeking an abortion.

C. The court splits with four federalappellate circuits.

Mindful of the health and safety inter-ests recognized in these decisions, Wiscon-sin and eleven other states have passedadmitting-privilege laws. Planned Par-enthood of Wis. v. Van Hollen, 738 F.3d786, 791 (7th Cir.2013). Lawsuits initiatedby abortion providers followed, and multi-ple circuits have ruled on their constitu-tionality. The rationales deployed in thesedecisions have varied, but two facts arecommon throughout. First, every circuitto rule on similar admitting-privileges lawslike the one at issue here has uniformlyupheld them. Second, no circuit exceptours has ventured anywhere close toadopting the extreme position taken by thecourt that a state’s admitting-privilegeslaw lacks a rational basis. See WholeWomen’s Health v. Cole, 790 F.3d 563, 584(5th Cir.2015) (plaintiffs challenging Tex-as’s admitting-privileges law concede it issupported by a rational basis); JacksonWomen’s Health Org. v. Currier, 760 F.3d448, 454 (5th Cir.2014) (‘‘H.B. 1390 satis-fies rational basis review based upon ourbinding precedent in Abbott.’’); PlannedParenthood of Ariz., Inc. v. Humble, 753F.3d 905, 914 (9th Cir.2014) (‘‘We assumewithout deciding that the Arizona lawpasses rational-basis review.’’); Abbott II,748 F.3d at 595 (‘‘Applying the rationalbasis test correctly, we have to concludethat the State acted within its prerogativeto regulate the medical profession by heed-ing these patient-centered concerns andrequiring abortion practitioners to obtainadmitting privileges at a nearby hospi-tal.’’); Planned Parenthood of GreaterTex. Surgical Health Servs. v. Abbott, 734

F.3d 406, 411 (5th Cir.2013) (Abbott I )(‘‘The State offered more than a conceiva-ble state of facts that could provide arational basis for requiring abortion physi-cians to have hospital admission privi-leges.’’) (footnote and internal marks omit-ted); 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 admittingprivileges at local hospitals and referralarrangements with local experts are soobviously beneficial to patients.’’) (citationsomitted); Women’s Health Ctr. of W. Cty.,Inc. v. Webster, 871 F.2d 1377, 1381 (8thCir.1989) (‘‘We have no difficulty in con-cluding that [the admitting-privileges law]rationally relates to the state’s legitimateinterest in ensuring that prompt backupcare is available to patients who undergoabortions in outpatient clinics.’’).

The rational basis standard is no strang-er to the judiciary. Federal courts acrossthe nation apply it regularly when consti-tutional challenges are brought againststate action. Familiar as it may be, thedistrict court failed to apply it, proceedinginstead as though the state bore the bur-den of proving that its admitting-privilegeslaw was reasonably related to the healthand safety of women seeking abortions.Van Hollen, 94 F.Supp.3d at 964 (‘‘Sincethe State contends that the admitting priv-ileges requirement at issue is reasonablydirected to the health of women seekingabortions, it has the burden of demonstrat-ing this link.’’) (citations omitted).

That’s exactly backwards. Under ra-tional basis review, courts must presumethat the law in question is valid and up-hold it so long as the law is rationallyrelated to a legitimate state interest. Cityof Cleburne v. Cleburne Living Ctr., 473U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d313 (1985). Since the Supreme Court hasrepeatedly recognized the state’s long-


standing interest in protecting the healthand safety of pregnant women who havechosen abortion, at this juncture, ‘‘wemust presume that the admitting-privi-leges requirement is constitutional, anduphold it so long as the requirement isrationally related to Wisconsin’s legitimateinterests.’’ Van Hollen, 738 F.3d at 800(Manion, J., concurring in part and in thejudgment) (citations omitted). The partychallenging an abortion restriction bearsthe burden of proving the government’saction irrational. See Mazurek, 520 U.S.at 971, 117 S.Ct. 1865 (citing Casey, 505U.S. at 884, 112 S.Ct. 2791). To prove alegislative act irrational, ‘‘the burden is onthe one attacking the legislative arrange-ment to negate every conceivable basiswhich might support it.’’ Heller v. Doe,509 U.S. 312, 320, 113 S.Ct. 2637, 125L.Ed.2d 257 (1993) (citation omitted).This is a tall order because ‘‘the govern-ment may defend the rationality of itsaction on any ground it can muster.’’RJB Props., Inc. v. Bd. of Educ. of Chic.,468 F.3d 1005, 1010 (7th Cir.2006) (citationand internal marks omitted).

Thus, the inquiry for courts under ra-tional basis review starts with this ques-tion: is there ‘‘any reasonably conceivablestate of facts that could provide a rationalbasis’’ for the state regulation? See F.C.C.v. Beach Commc’ns, Inc., 508 U.S. 307,313, 113 S.Ct. 2096, 124 L.Ed.2d 211(1993); Abbott I, 734 F.3d at 411. As

demonstrated above, the answer to thatquestion is yes. So the next question toask is whether the state’s means of pro-moting its regulation (admitting privileges)are reasonably related to the legitimateinterest already established (patient safe-ty). If that answer is also yes, then theregulation satisfies rational basis review,and we must uphold it. That the contro-versy implicates abortion does not alterthe analysis because ‘‘[n]othing in the Su-preme Court’s abortion jurisprudence de-viates from the essential attributes of therational basis test, which affirms a vitalprinciple of democratic self-government.’’Abbott II, 748 F.3d at 594.2

D. Admitting privileges further Wis-consin’s legitimate state interestin patient safety.

Admitting privileges are, in the words ofthe Fourth Circuit, ‘‘obviously beneficial.’’Greenville Women’s Clinic, 317 F.3d at363 (citation omitted). So beneficial, infact, that the National Abortion Federa-tion recommended them until only recent-ly. At trial, Wisconsin’s expert, Dr. JamesAnderson, Clinical Professor in the De-partment of Family Practice & PopulationHealth at Virginia Commonwealth Univer-sity School of Medicine, referenced a publi-cation from the National Abortion Federa-tion entitled Having an Abortion? YourGuide to Good Care (2000), which statesthat ‘‘[i]n the case of emergency, the doc-

2. In its efforts to wrest this case from theambit of rational basis review, the court as-signs great weight to numerous studies andreports which contend that complicationsrarely occur after abortions and that thosewhich do occur are not more frequent thanother types of outpatient surgeries. But thisis immaterial because courts do not weighevidence when they apply rational basis re-view. See Nat’l Paint & Coatings Ass’n v. Cityof Chic., 45 F.3d 1124, 1127 (7th Cir.1995)(recalling that there is ‘‘never a role for evi-dentiary proceedings’’ under rational basis re-

view). For the plaintiffs to prevail, they mustprove that post-abortion complications neveroccur in Wisconsin, or that admitting privi-leges have no impact on safety. See Heller,509 U.S. at 321, 113 S.Ct. 2637 (‘‘[T]he bur-den is on the one attacking the legislativearrangement to negate every conceivable ba-sis which might support it.’’) (citation andinternal marks omitted). However, that isnot possible on this record, because the plain-tiffs’ own expert and the court-appointed ex-pert testified that admitting privileges arebeneficial because they make abortion safer.


tor should be able to admit patients to anearby hospital (no more than 20 minutesaway).’’ Dkt. 244 at 237–40; Dkt. 126¶¶ 6–7.

Indeed, the medical community has longbeen of the opinion that admitting privi-leges provide a real benefit to the healthand safety of pregnant women seeking anabortion. In 2003, the American Collegeof Surgeons issued a statement on patient-safety principles that was joined by theAmerican Medical Association and theAmerican College of Obstetricians and Gy-necologists. They listed several ‘‘coreprinciples,’’ the fourth of which providedthat: ‘‘[p]hysicians performing office-basedsurgery must have admitting privileges ata nearby hospital, a transfer agreementwith another physician who has admittingprivileges at a nearby hospital, or maintainan emergency transfer agreement with anearby hospital.’’ 3

Perplexingly, in this case, the AMA andACOG have filed a joint amicus brief argu-ing that Wisconsin’s admitting-privilegeslaw is unconstitutional. Yet their briefmakes no mention of their 2003 statementor their sudden, yet convenient, disavowalof one of their ‘‘core principles’’ related topatient safety. It appears from the trialtestimony that plaintiff-doctors have sim-ply decided that admitting privileges areonly desirable insofar as they do not cause

members of their guild to become ineligi-ble to perform abortions.

Abbott II also supports this conclusion.There, the court observed that ‘‘[t]here arefour main benefits supporting the require-ment that operating surgeons hold localhospital admitting and staff privileges: (a)it provides a more thorough evaluationmechanism of physician competency whichbetter protects patient safety; (b) it ac-knowledges and enables the importance ofcontinuity of care; (c) it enhances inter-physician communication and optimizes pa-tient information transfer and complicationmanagement; and (d) it supports the ethi-cal duty of care for the operating physicianto prevent patient abandonment.’’ AbbottII, 748 F.3d at 592. Here, the partieshave consolidated these four categories ofbenefits into three. The trial record con-tains evidence that admitting privilegesare rationally related to a legitimate stateinterest because they promote the healthand safety of pregnant women seekingabortions in Wisconsin.4 Therefore, at thefirst step of the Gonzales test, this re-quirement is subject to rational basis re-view. I address each benefit in turn.

i. Continuity of care

Continuity of care is beneficial to abor-tion patients because it reduces the ‘‘riskof injury caused by miscommunication and

3. See American College of Surgeons, State-ment on Patient Safety Principles for Office-based Surgery Utilizing Moderate Sedation/An-algesia, Deep Sedation/Analgesia, or GeneralAnesthesia, Bulletin of the American Collegeof Surgeons, Vol. 89, No. 4 (Apr.2004), avail-able at http://www.facs.org/fellows info/statements/st–46.html (last visited Nov. 12,2015).

4. The district court presupposed that the lackof required admitting privileges for other,more dangerous medical procedures showedthat the only purpose of Wisconsin’s law wasto restrict safe, legal abortions. It also con-

cluded that the immediate effective date aftersigning was clearly intended to close the clin-ics. But the legislative purpose was not toimmediately close the clinics. The legislatureapproved the statutes several weeks beforethe governor signed the legislation. There isno evidence that their apparent failure to des-ignate a specific effective date was anythingother than a simple oversight. The prelimi-nary injunction, with which I concurred,quickly cured that problem. Significantly,the preliminary injunction and the delay inconnection with the trial enabled all ofPlanned Parenthood’s abortion doctors to ac-quire admitting privileges.


misdiagnosis when a patient is transferredfrom one health care provider to another.’’Abbott II, 748 F.3d at 595. Indeed, evenplaintiff and expert witness Dr. KathyKing of Planned Parenthood agreed thatcontinuity of care is a necessary ingredientwhen treating patients. Dkt. 243 at 155.

Dr. King’s opinion was shared by thecourt-appointed expert, Dr. Serdar Bulun,Chair of the Department of Obstetrics andGynecology at Northwestern University’sFeinberg School of Medicine, who alsoopined that ‘‘physician to physician com-munication is one of the most importantrequirements for optimal handling of acomplication arising from a procedure,’’and that ‘‘communication should ideallytake place between the physician perform-ing the abortion and the physician at thehospital, who will be handling the compli-cation.’’ 7th Cir. Dkt. 44 at 4.5 Dr. Buluntestified further that admitting privilegeswould have benefits ‘‘probably 90% of thetime,’’ Dkt. 244 at 60, and that while trans-fer agreements were important, ‘‘in an ide-al world both [admitting privileges andtransfer agreements] should exist.’’ Id. at61.

Likewise, Wisconsin’s experts, includingDr. Anderson and Dr. John Thorp (aboard-certified ob-gyn who teaches at theUniversity of North Carolina’s School ofPublic Health), opined that admitting priv-ileges aided in promoting continuity of

care. Id. at 233 (Dr. Anderson); Dkt. 131¶ 22 & Dkt. 164 ¶ 15 (Dr. Thorp).

The opinions of these medical profes-sionals are shared, too, by the Fifth Cir-cuit, which concluded that ‘‘[r]equiringabortion providers to have admitting privi-leges would also promote the continuity ofcare in all cases, reducing the risk of inju-ry caused by miscommunication and misdi-agnosis when a patient is transferred fromone health care provider to another.’’ Ab-bott II, 748 F.3d at 595.

ii. Credentialing

Similarly, the ‘‘credentialing process en-tailed in the regulation reduces the riskthat abortion patients will be subjected towoefully inadequate treatment.’’ Id. Inother words, credentialing advances thestate’s interest in promoting patient healthby helping ensure that doctors performingabortions are qualified. Dr. Geoffrey R.Keyes, president of the American Associa-tion for Accreditation of Ambulatory Sur-gery Facilities, opined that ‘‘credentialingand privileging serve important and neces-sary functions in contemporary medicalpractice, primarily to ensure that patientsreceive safe high quality care from provid-ers with appropriate skill, training andexperience.’’ Dkt. 127 ¶ 15.

In addition to the testimony of Dr.Anderson, Dkt. 244 at 232–33, Dr. Bulunopined that a benefit of physicians havingadmitting privileges is ‘‘to ensure that the

5. In its standing analysis, the court correctlyrecognizes that a woman who has had or isexpecting to have an abortion does not wanther name exposed as a plaintiff in a lawsuitchallenging the constitutionality of the lawregulating abortion practices. The same pri-vacy concerns would be encountered if awoman suffering from an abortion-related in-jury had to go to the nearest emergency room.There she would have to give her name anddisclose the cause of her injury (or else lieabout it, suggesting that it must have been anatural miscarriage). She may also have to

wait in line before being treated, or undergopreliminary examinations to determine thenature and source of the problem. If admit-ting privileges were in place, by contrast, thewoman’s operating physician could bypassany embarrassing delay and promptly securethe woman’s admission and treatment uponarrival. In this way, the physician-to-physi-cian communication facilitated by the admit-ting-privileges requirement would help pro-tect the woman’s privacy and promote moreefficient remedial treatment.


practicing physicians are appropriatelyqualified, trained and competent to prac-tice in a specific area of medicine or sur-gery.’’ 7th Cir. Dkt. 44 at 3. The FifthCircuit agreed, stating that the ‘‘require-ment that physicians performing abortionsmust have hospital admitting privilegeshelps to ensure that credentialing of physi-cians beyond initial licensing and periodiclicense renewal occurs.’’ Abbott I, 734F.3d at 411.

iii. Accountability and peer review

Finally, in addition to Wisconsin’s ex-perts and Dr. Bulun, plaintiffs’ own expertwitness, Dr. Douglas W. Laube, a Profes-sor of Obstetrics and Gynecology at theUniversity of Wisconsin Medical School,and past president of the American Col-lege of Obstetricians and Gynecologists,testified that accountability and peer re-view was a benefit to women’s health pro-moted by Wisconsin’s admitting-privilegesrequirement. Dkt. 244 at 65–66.6

III

A. Wisconsin’s admitting-privilegesrequirement does not impose anUndue Burden on a woman’s abil-ity to choose abortion.

The record evidence I have cited estab-lishes beyond a doubt that the Wisconsin

State Assembly had a ‘‘rational basis toact’’ in passing this admitting-privilegeslaw in order to protect the health andsafety of pregnant women who chooseabortion in Wisconsin. See Gonzales, 550U.S. at 158, 127 S.Ct. 1610. Given that‘‘[r]egulations designed to foster the healthof a woman seeking an abortion are valid ifthey do not constitute an undue burden,’’Casey, 505 U.S. at 877–78, 112 S.Ct. 2791,the next question is whether this law hasthe effect of imposing an undue burden onthe ability of women to choose abortion.

The Casey plurality first described the‘‘undue burden’’ test as follows: ‘‘A findingof an undue burden is a shorthand for theconclusion that a state regulation has thepurpose or effect of placing a substantialobstacle in the path of a woman seeking anabortion of a nonviable fetus.’’ Id. at 877,112 S.Ct. 2791. We said that, in applica-tion, ‘‘a court’s proper focus must be onthe practical impact of the challenged reg-ulation and whether it will have the likelyeffect of preventing a significant numberof women for whom the regulation is rele-vant from obtaining abortions.’’ Karlin,188 F.3d at 481. The Supreme Court thensimplified Casey ’s description of an undueburden by collapsing the purpose inquiryinto the effects test. See Gonzales, 550

6. While the only issue on appeal is the man-date for admitting privileges, another veryimportant purpose of Wisconsin’s law was therequirement for ultrasounds. As I pointedout in my earlier concurrence, receiving anultrasound before an abortion benefits womenin several ways. For starters, the ultrasoundwould confirm the fact that she was pregnant.Once she saw or heard the heartbeat, shewould be assured that there is not a mistakenpregnancy test or a spontaneous miscarriagethat was not earlier detected. Thus shewould avoid paying several hundred dollarsfor an unnecessary operation. Also, the ultra-sound would help reduce medical uncertaintyand disclose any potential complications,such as by enabling a more accurate assess-

ment of the gestational stage of the pregnan-cy. The detection of twins might also give thewoman second thoughts. But regardless ofwhether certain legislators hoped that an ul-trasound would cause the woman to changeher mind, the ultrasound indisputably pro-vides important information facilitating amore fully informed decision, which cannotbe seen as anything but a benefit to the wom-an (even if the abortionist might disapprove ofher decision). The obvious benefits flowingfrom the ultrasound requirement show thatWisconsin’s law is supported by a number ofrational bases—all centered on the health andwelfare of the woman—in addition to thoseadvanced by the requirement for admittingprivileges.


U.S. at 158, 127 S.Ct. 1610; Currier, 760F.3d at 460 n. 4 (Garza, J., dissenting).That is the second step of our analysis.

As an intermediate appellate court, weare bound to apply standards establishedby the Supreme Court. When this casewas first before us, however, the courtmajority shifted the burden to the state tojustify the medical necessity of its admit-ting-privileges law and characterized theundue burden standard for the districtcourt to apply on remand as follows:

The cases that deal with abortion-relat-ed statutes sought to be justified onmedical grounds require not only evi-dence (here lacking as we have seen)that the medical grounds are legitimatebut also that the statute not impose an‘‘undue burden’’ on women seeking abor-tions. The feebler the medical grounds,the likelier the burden, even if slight, tobe ‘‘undue’’ in the sense of dispropor-tionate or gratuitous.

Van Hollen, 738 F.3d at 798 (citationsomitted). Although I concurred in thatjudgment affirming the preliminary injunc-tion because the law provided no graceperiod for abortion doctors to acquire ad-mitting privileges before the law requiringthem took effect, I did not then—nor do Itoday—endorse the home-brewed ‘‘undueburden’’ standard that the court now dou-bles-down on. Simply stated, it finds nobasis in Gonzales, Casey, or any other caselaw other than that which it created. SeeWhole Women’s Health v. Lakey, 769 F.3d285, 297 (5th Cir.2014) (‘‘Under our prece-dent, we have no authority by which toturn rational basis into strict scrutiny un-der the guise of the undue burden inqui-ry.’’). By reversing the burdens of proof,the court also implicitly rejects Mazurek,520 U.S. at 971, 117 S.Ct. 1865, whichrequires that the party challenging anabortion restriction bear the burden ofproof. See Abbott II, 748 F.3d at 597.

1. Effect of AMS’s potential closureon the Undue Burden analysis

In Wisconsin, Planned Parenthood oper-ates abortion clinics in Milwaukee, Madi-son, and Appleton. Its abortion providersat each of those clinics have secured admit-ting privileges. Affiliated Medical Ser-vices (AMS) operates one abortion clinic inMilwaukee. Drs. Dennis Christensen andBernard Smith staff AMS and are, at pres-ent, the only abortion providers in Wiscon-sin to conduct abortions after 18.6 weeksLMP (commonly known as ‘‘late-termabortions’’). Neither has secured admit-ting privileges. Consequently, the plain-tiffs contend that AMS risks closure, andthat, if that occurs, women seeking abor-tions in Wisconsin will face three undueburdens: (1) significantly increased waittimes; (2) required travel to Chicago orother locations; and (3) no inpatient optionfor women seeking late-term abortions inWisconsin. I address these arguments inturn.

a. Wait times

Dr. King of Planned Parenthood testi-fied that, if AMS were to close, it would‘‘overwhelm the capacity of the PlannedParenthood of Wisconsin clinics to accom-modate’’ the 2,500 women who incurredabortions at AMS in 2013. Dkt. 243 at147–48. In crediting this testimony, thedistrict court erroneously characterizedthe undue burden standard as requiring‘‘access to abortion services in Wisconsin.’’Van Hollen, 94 F.Supp.3d at 989. TheSupreme Court’s abortion jurisprudencecarries no intrastate guarantee.

‘‘Although all pre-viability regulationsburden a woman’s ability to obtain anabortion to some degree, the Court [inCasey ] explained that an abortion law isnot rendered unconstitutional merely be-cause it operates to make it more difficult


or more expensive to procure an abortion.’’Karlin, 188 F.3d at 479 (citing Casey, 505U.S. at 874, 112 S.Ct. 2791). Casey reject-ed the notion that the abortion right is theright ‘‘to decide whether to have an abor-tion without interference from the State.’’Casey, 505 U.S. at 875, 112 S.Ct. 2791(quoting Planned Parenthood of Cent. Mo.v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831,49 L.Ed.2d 788 (1976)) (internal marksomitted). Rather, the abortion right rec-ognized by Roe is the ‘‘right to be freefrom unwarranted governmental intrusion’’in making the abortion decision. Id. (cita-tion and internal marks omitted). Ulti-mately, Casey summarizes the undue bur-den standard as follows:

Only where state regulation imposes anundue burden on a woman’s ability tomake this decision does the power of theState reach into the heart of the libertyprotected by the Due Process Clause.

Id. 505 U.S. at 874, 112 S.Ct. 2791 (cita-tions omitted).

The Supreme Court has held that theconstitutional right to privacy extends to awoman’s right to choose abortion; it hasnot held, or even implied, that this right isintrastate in nature. To be sure, there isno constitutional right to obtain an abor-tion at the clinic of one’s choice and at thetime of one’s convenience, just as one’sright to free speech does not apply in allplaces a protester might desire to com-plain. In the same way that a state mayreasonably regulate speech if it leavesopen adequate alternative forums for ex-pression, increased wait times at one clinicdo not constitute an undue burden when

other clinics within a reasonable distanceremain open for business. See, e.g., AbbottII, 748 F.3d at 598 (clinic closure was notundue burden when another clinic was ac-cessible within 150 miles); Women’s Med.Prof. Corp. v. Baird, 438 F.3d 595, 605 (6thCir.2006) (same within 45 to 55 miles);Greenville Women’s Clinic v. Bryant, 222F.3d 157, 165 (4th Cir.2000) (same within70 miles).

AMS is one of four abortion clinics inWisconsin and two in Milwaukee. Even ifit closed, patrons seeking pre–18.6 weekLMP abortions (approximately 98% ofwomen seeking abortions in Wisconsin)would need to travel a mere 1.3 miles (fourminutes by automobile) to reach PlannedParenthood’s Milwaukee clinic instead.7

The plaintiffs argue that the state cre-ates an undue burden under Casey when aregulation designed to protect the healthand safety of pregnant women decreasesthe availability of qualified abortionists.The implications of this argument are as-tounding. Taken to its logical end, thisargument would require the state to as-sume some affirmative duty both to pro-vide abortion services and to do so in amanner that is convenient for consumersof abortion and with no regard for thequality of healthcare professionals that astate’s naturally occurring marketplaceprovides. The state bears no such obli-gation or duty. Karlin, 188 F.3d at 479(‘‘Although all pre-viability regulationsburden a woman’s ability to obtain anabortion to some degree, the Court ex-plained [in Casey ] that an abortion law isnot rendered unconstitutional merely be-

7. Statistics indicate that approximately 98%of women seeking abortions in Milwaukeewill not be impacted if AMS closes. In 2012,there were 6,927 abortions reported in Wis-consin. Dkt. 200 ¶ 9. That same year, AMSperformed 131 post–20 week LMP abortions.Dkt. 243 at 29–30. Although these statisticsdo not account for the women who incurred

abortions after 18.6 weeks LMP, but before 20weeks LMP, the post–20 week number ac-counts for less than 2% of all abortions inWisconsin. Women seeking the latest termabortions permitted by law have access toother clinics in Chicago that are well within adistance held not to be an undue burden, as Idiscuss below.


cause it operates to make it more difficultor more expensive to procure an abor-tion.’’) (citation omitted).

While the Supreme Court has limited astate’s ability to regulate abortions, it hasnever required a state to establish a com-mand economy in order to provide them.That the market may disfavor abortionistsis not the state’s concern, but the preroga-tive of the purveyors of that service. Likeany enterprise that wishes to be a goingconcern, entities that wish to sell abortionsmust hire practitioners who are able tosecure the necessary credentials on thebasis of their professional reputations andtheir documented provision of skilled care.8

In this instance, these credentials includeadmitting privileges.

The solution to the plaintiffs’ problemsis that they find more qualified doctors,not that the state relax—or that we strikedown as unconstitutional—precautions tak-en by the state to protect the health andsafety of pregnant women who have cho-sen to abort their pregnancies. See Casey,505 U.S. at 875, 112 S.Ct. 2791 (rejectingthe notion that the abortion right is theright ‘‘to decide whether to have an abor-tion without interference from the State’’).Lest there be any doubt, Wisconsin laborsunder no compulsory receivership that ob-ligates it to intervene if the market fails toprovide qualified abortionists within its

boundaries. State inaction is not stateaction.

In short, there is simply no basis for usto disrupt the market for abortionists byinterjecting ourselves: their abilities toqualify for admitting privileges, like ‘‘[t]heindependent decisions of private hospi-tals[,] have no place in our review of stateaction under the Constitution.’’ Currier,760 F.3d at 460 (Garza, J., dissenting)(citation and footnote omitted).

b. Required travel and availability oflate-term abortions

Consumers who live near the border oftwo states tend to shop at the closestdestination, regardless of whether they re-side in that state. Disregarding this rou-tine assumption, plaintiffs argue that re-quiring women seeking abortion to traveloutside the state to obtain late-term abor-tions creates an undue burden. Surpris-ingly, this argument finds some basis inthe Fifth Circuit’s recent decision in Jack-son Women’s Health Organization v. Cur-rier, 760 F.3d 448, 457 (5th Cir.2014),where the court held that ‘‘the proper for-mulation of the undue burden analysis fo-cuses solely on the effects within the regu-lating state.’’ However, our precedentsquarely disagrees with Jackson: ‘‘the un-due-burden standard must be applied TTT

8. The court refers to a few hospitals thatrequire doctors to have treated a certain num-ber of patients there in order to obtain admit-ting privileges. Other hospitals might giveadmitting privileges to doctors who demon-strate competence in the particular procedurethat the doctor seeks to perform. Of course,a hospital that requires delivering 100 livebabies in the previous two years would notgive the AMS doctors admitting privileges be-cause, as the court observes, ‘‘delivering livebabies is not what abortion doctors do.’’ Andas the court also noted when discussing thevery low death rate for women who undergoabortions, the study cited measured long-termmortality rates ‘‘rather than death resulting

from an abortion.’’ However, to their credit,the Planned Parenthood doctors at the otherthree abortion clinics in Wisconsin have ap-parently demonstrated sufficient competencein medical procedures, perhaps even deliver-ing live babies, to qualify for and to obtain thestatutorily required admitting privileges. Forwomen considering abortion, that credentialthat distinguishes them from AMS is worthnoting. Although the court implies otherwise,it is safe to say that the Planned Parenthooddoctors will not depend on the ‘‘rare’’ abor-tion complication to obtain a sufficient vol-ume of hospital work to maintain their admit-ting privileges.


to the nation as a whole, rather than onestate at a time.’’ A Woman’s Choice–E.Side Women’s Clinic v. Newman, 305 F.3d684, 688 (7th Cir.2002).

Turning towards distance rather thantowards the governor’s mansion, Chicagois approximately 93 miles from Milwau-kee—or a one hour and forty minute drive.The Fifth Circuit recently held that Tex-as’s admitting-privileges law did not im-pose an undue burden on a woman’s rightto choose abortion because ‘‘travel of lessthan 150 miles for some women is not anundue burden under Casey.’’ Abbott II,748 F.3d at 598 (citation omitted). BeforeAbbott II, the Sixth Circuit similarly con-cluded that there was no undue burdenunder Casey where one of two Ohio clinicsto conduct 18–24 week abortions wasclosed due to lack of a transfer agreementwith a local hospital, even when the re-maining clinic was located over 200 milesaway. See Baird, 438 F.3d at 599, 605.Consistent with these authorities, it is wellwithin the scope of Newman to concludethat the 93–mile trip from Milwaukee toChicago to obtain an abortion does notimpose an undue burden on a woman’sability to choose abortion. 305 F.3d at688.

2. Even if the undue burden standardapplied to the market availabilityof abortion doctors, the AMS abor-tionists made minimal efforts toobtain admitting privileges.

When this case was before us on thepreliminary injunction, I asked plaintiffs’counsel at oral argument about the status

of the plaintiffs’ applications for admittingprivileges at Wisconsin hospitals. Counselwas unable to confirm whether any doctorsservicing the four abortion clinics in Wis-consin possessed admitting privileges, nordid she know the status of any pendingapplications by her clients to obtain them.9

i. Planned Parenthood’s efforts to ob-tain admitting privileges

We know more now. At least sixPlanned Parenthood abortion doctors—Dr.Susan Pfleger, Dr. Kathy King, and pseud-onymous plaintiffs P1, P2, P3, and P5—allof whom did not have admitting privilegeswhen this lawsuit was filed, have subse-quently obtained them. See Van Hollen,94 F.Supp.3d at 988–89. These individualsput forth sufficient efforts to obtain admit-ting privileges and were successful, prov-ing that obtaining admitting privileges isnot an insurmountable obstacle, even forabortion doctors.

ii. AMS’s efforts to obtain admittingprivileges

The same cannot be said of Drs. Chris-tensen and Smith. Milwaukee has overtwo dozen hospitals,10 yet Dr. Smith onlyattempted to apply for admitting privilegesat one hospital (and had the AMS managersend an inquiry email to another). Dr.Christensen (who had admitting privilegesfor decades before entering semi-retire-ment) attempted to apply for admittingprivileges at two hospitals, but did notattempt to satisfy their informational re-quests. In the words of the district court,these ‘‘efforts’’ demonstrate that both doc-

9. Of course, I recognize that, at the prelimi-nary injunction stage, it was in counsel’sclients’ best interests for her to be non-re-sponsive to my question because if she hadinformed us that some of her clients alreadypossessed admitting privileges, some of theclinics would likely have remained open evenin light of the law’s immediate effect, and we

may have been less likely to affirm the injunc-tion entered by the district court.

10. See Discover Milwaukee–Metro MilwaukeeHospitals, http://www.discovermilwaukee.com/healthcare-and-fitness/metro-milwaukee-hospitals/ (last visited Nov. 12, 2015).

935HEALTH & WELFARE TRUST FUND v. CON–TECH CARPENTRYCite as 806 F.3d 935 (7th Cir. 2015)

tors ‘‘fail[ed] to exhaust all opportunities’’to obtain admitting privileges. Id. at 987.I agree with that assessment. Moreover,while both doctors were savvy enough toobtain counsel for the purpose of initiatingthis lawsuit, neither did so to assist intheir acquisition of the admitting privilegesthis lawsuit seeks to invalidate. Dkt. 211at 48 (Dr. Smith); Dkt. 226 at 45 (Dr.Christensen). Despite plaintiffs’ argu-ments to the contrary, indifference to-wards the law by abortion providers thatresults in an abortion clinic’s potential clo-sure does not create an undue burden.

IV

I regret that today’s decision marks thelatest chapter in our circuit’s continuedmisapplication of the Supreme Court’sabortion jurisprudence. By a majority ofone, the court has eliminated a measurethat Wisconsin’s elected officials have en-acted to protect the health and safety ofwomen who choose to incur an abortion.There is no question that Wisconsin’s ad-mitting-privileges requirement furthersthe legitimate, rational basis of protectingwomen’s health and welfare. Among oth-er benefits, the requirement promotescontinuity of care and helps to ensurethat abortionists are properly credentialedand qualified. It also works in tandemwith Wisconsin’s ultrasound requirementto facilitate informed decision-making onthe parts of doctor and patient alike.Nor is there any indication that the re-quirement would pose a substantial obsta-cle to women’s ability to access abortionproviders in their area. As Planned Par-enthood’s successful applications for ad-mitting privileges demonstrate, the hospi-tals of Wisconsin are perfectly willing togrant admitting privileges to qualifiedphysicians who perform abortions in theirstate. Because Wisconsin’s admitting-privileges requirement has the rationalbasis of promoting the health and safety

of pregnant women who have decided toincur an abortion, and because it does notimpose an undue burden under Casey, Idissent.

,

CENTRAL ILLINOIS CARPENTERSHEALTH AND WELFARE TRUSTFUND, et al., Plaintiffs–Appellees,

v.

CON–TECH CARPENTRY, LLC,Defendant–Appellant.

No. 15–1269.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 6, 2015.

Decided Nov. 24, 2015.

Background: Multi-employer health andwelfare funds filed action against employerunder Employee Retirement Income Secu-rity Act (ERISA) seeking delinquent con-tributions. After entry of default judg-ment, the United States District Court forthe Central District of Illinois, Colin S.Bruce, J., denied employer’s motion forrelief from judgment, and employer ap-pealed.

Holding: The Court of Appeals, Easter-brook, Circuit Judge, held that districtcourt did not abuse its discretion in deny-ing employer’s motion from relief fromdefault judgment.

Affirmed.

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