Madison — Attorney General J.B. Van Hollen on Tuesday appealed a federal court ruling blocking until a November trial a Wisconsin law requiring doctors who perform abortions to have hospital admitting privileges.
Van Hollen filed the notice of appeal with the 7th Circuit U.S. Court of Appeals in Chicago but did not spell out his rationale in court documents. The appeal comes just four days after U.S. District Judge William Conley blocked the law from going into effect until he holds a Nov. 25 trial on whether the law is constitutional.
If Van Hollen were to succeed, the abortion law would take effect at least until the trial is held. For now, the federal appeals court will decide the fate of the law only for the period leading up to the trial.
After the trial, Conley will decide whether to allow the law to take effect permanently or to block it permanently. The losing side is expected to appeal that ruling to the 7th Circuit.
Similar laws have been passed in other states, where related litigation is underway. Higher courts are expected to ultimately determine whether states can require doctors who perform abortions to have hospital admitting privileges.
In his decision Friday, Conley noted that the U.S. Supreme Court has ruled that women have a right to abortion, but that the state can put limits on the procedure when there is a government interest in doing so, such as protecting the health of a woman. But the Republican attorney general is unlikely to succeed in his arguments, Conley found.
The law also likely puts an undue burden on women seeking abortions because it would close, at least in the short term, two of the state's four abortion clinics, Conley wrote. Women from northern Wisconsin and Michigan's Upper Peninsula would have to drive to Madison or Milwaukee to get abortions, making the procedure more difficult to obtain for poor women, he wrote.
Republican lawmakers introduced and quickly passed the abortion regulation in June, and Gov. Scott Walker signed it into law July 5. Within hours, Planned Parenthood of Wisconsin and Affiliated Medical Services — the two groups that run abortion clinics in the state — sued in federal court in Madison, contending the law violates the constitution's due process guarantee, puts an undue burden on the right to abortion and unconstitutionally treats doctors who perform abortions differently from doctors who perform other procedures.
Conley issued a temporary restraining order blocking the law on July 8 and blocked it until trial on Friday.
The law requires doctors to have admitting privileges at hospitals within 30 miles of where they perform the procedure. It also requires women seeking abortions to get ultrasounds, but that provision has not been challenged in court and has gone into effect.
If the law goes into effect, it will close Planned Parenthood's clinic in Appleton and Affiliated's clinic in Milwaukee because doctors there do not have admitting privileges at hospitals that are near enough to the clinics, according to the plaintiffs. Planned Parenthood's Milwaukee clinic would operate at half capacity.
The law would thus reduce the number of abortion clinics in Wisconsin from four to two.
Conley has said the case comes down to whether the state has a legitimate interest in requiring admitting privileges for doctors who provide abortion.
To do that, the state needs to show doctors providing other procedures are treated similarly. The attorneys for the abortion clinics have noted doctors who provide riskier outpatient services do not need admitting privileges.
The judge has noted that hospitalizations from abortion are rare. When they do occur, they often happen after women return to their homes, which in some cases are hundreds of miles from the clinic where a surgical abortion was provided or an abortion pill was given. The benefit of having admitting privileges at a hospital 30 miles from the clinic would do little if any good in those situations, Conley said during a hearing last month.
Last week, Van Hollen filed a motion to dismiss part of the case, contending the doctors and clinics who filed the suit do not have the ability to bring the case on behalf of women seeking abortions. Conley earlier said such an argument held little sway because the 7th Circuit has found that doctors do have standing to bring actions on behalf of their patients.
Wisconsin is the eighth state to require hospital admitting privileges, according to the Guttmacher Institute, a group that supports access to abortion and tracks abortion laws.
Judges have blocked the requirements in Alabama and Mississippi, as well as for some clinics in Kansas. The laws were not challenged in Utah and Tennessee and remain in effect there. A judge has not ruled in a North Dakota case, and Arizona's law has yet to be implemented.
Abortion opponents have noted that Missouri's abortion law has been upheld by the federal 8th Circuit Court of Appeals. Missouri's law is not included in Guttmacher's count of states with admitting privileges laws because Missouri allows exceptions for clinics if hospitals have agreed to accept their patients for any emergencies.
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