News Law and Policy

Federal Appeals Court Hears Arguments in Wisconsin Admitting Privileges Challenge

Jessica Mason Pieklo

The Seventh Circuit Court of Appeals heard arguments Tuesday on the constitutionality of a Wisconsin law that requires abortion providers to have admitting privileges at a nearby hospital.

On Tuesday, the Seventh Circuit Court of Appeals heard arguments in the case challenging a Wisconsin law that requires doctors providing abortions to have admitting privileges at a hospital within 30 miles of their clinic. Wisconsin is one of five states to recently pass some form of hospital admitting privileges requirement, and the arguments come just one month after the Fifth Circuit Court of Appeals allowed a similar Texas law to go into effect despite a lower court ruling the law unconstitutional.

Wisconsin anti-choice activists quickly introduced and passed the requirement this summer, and Gov. Scott Walker (R) signed the bill, Act 37, into law just after the Fourth of July holiday. The law also has a mandatory ultrasound requirement that requires a patient to have an ultrasound and be read a script of what is on the screen before an abortion can be performed. The ultrasound portion of the law is not being challenged.

Shortly after the law was enacted, reproductive rights advocates filed a suit challenging the law as unconstitutional. Attorneys challenging the law argued that if the hospital admitting privileges portion was allowed to go into effect it would significantly reduce a patient’s ability to access safe and legal abortion services in Wisconsin. According to the challengers, the bill would end the availability of abortion services at two of the four remaining abortion facilities in Wisconsin, and would significantly reduce the availability of abortion services in the two remaining Planned Parenthood facilities in Milwaukee and Madison because of the admitting privileges mandate.

In August, a federal judge agreed and granted a preliminary injunction, blocking the law from taking effect while the legal challenge proceeded. So far, federal courts have blocked similar laws in Alabama and Mississippi, while a state court in North Dakota blocked that state’s admitting privileges requirement. Kansas enacted a similar provision in 2011 that was later blocked. Texas’ admitting privileges law remains in effect.

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Attorneys for the State of Wisconsin argued the requirement was needed to ensure patient safety. But U.S. District Judge William M. Conley disagreed, concluding that, “[O]n this record, the admitting privileges requirement is a solution in search of a problem.” Judge Conley continued, “Even if there were some evidence that the admitting privileges requirement would actually further women’s health, any benefit is greatly outweighed by the burdens caused by increased travel, decreased access and, at least for some women, the denial of an in-state option for abortion services.”

The panel of Seventh Circuit Court of Appeals judges that heard Tuesday’s arguments included Judge Richard Posner, a Reagan appointee who most recently admitted publicly he got it wrong when he ruled voter identification efforts were not part of a larger plan to disenfranchise minority voters. That decision helped paved the way for the Roberts Court to gut the Voting Rights Act this summer. The remaining two judges on the panel were Judge Daniel Manion, also a Reagan appointee, and Judge David Hamilton, an Obama appointee.

A decision in the Wisconsin case is not expected for months. Meanwhile, a panel of judges in the Fifth Circuit Court of Appeals will hear arguments on Texas’ admitting privileges law in January.

After hearing arguments challenging the Wisconsin law Tuesday, Talcott Camp, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project placed the legal challenges in a broader context. “This law is part of a nationwide plan to shut down women’s health centers and prevent a woman from making her own decision about whether to have an abortion,” Camp said in a statement. “You have to ask yourself, if these laws are really about protecting a patient’s health, why do they apply only to doctors who provide abortions and not to doctors who provide medically comparable care?”

Correction: A version of this article incorrectly noted that Kansas’ admitting privileges law was in effect. We regret the error.

News Law and Policy

Wisconsin GOP’s Voter Restriction Law Suffers Another Legal Blow

Imani Gandy

In blocking many of Wisconsin's elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote.

A federal appeals court yesterday refused to stay a lower court order blocking several Wisconsin voting restrictions, allowing election officials to move forward with early voting in the state next month.

Attorneys on behalf of the state of Wisconsin filed the request for a stay with the Seventh Circuit Court of Appeals after a lower court judge last month issued an injunction that blocked parts of Wisconsin’s sweepings elections laws.

The lower court ruled that the justification for the laws did not justify the burden on voting rights that they impose. And this week a three-judge panel of the Seventh Circuit declined to stay that ruling, without explaining.

The ruling comes days after elections officials in Madison and Milwaukee announced their intention to kick off early voting in late September, a month earlier than would have been allowed had the lower court not struck down the restrictions on early voting, according to the Milwaukee-Wisconsin Journal Sentinel.

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The Republican-backed elections law created state-imposed limitations on the time and location for in-person absentee voting, a provision requiring absentee ballots be sent by mail instead of fax or email, the requirement that dorm lists—a certified list provided by the university of the students living in college housing, which student voters may use as proof of residence—must include citizenship information, a ban on using expired but otherwise qualifying student IDs to establish proof of residency, and a 28-day durational residency requirement.

In blocking many of Wisconsin’s elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote. Gov. Scott Walker (R) and the GOP-controlled Wisconsin legislature had implemented a system under which people who don’t have birth certificates or who have problems with gathering documentation needed to obtain the proper identification would still be able to vote.

The lower court noted that the Walker administration’s system did not provide a viable long-term solution for those voters who could not obtain their birth certificates because they were destroyed in fires or misplaced by bureaucrats.

The court later stayed that portion of the ruling, stating that the system created by Walker’s administration—which provides people with temporary voting credentials while they await a decision about whether they qualify for an ID—was sufficient to allow people to vote during the upcoming November election and therefore does not need to be immediately reformed.

The ruling comes on the heels of a ruling in another voting rights case in Wisconsin, Frank v. Walker, about the state’s voter ID law. In that case, a three-judge panel of the Seventh Circuit stayed a ruling that would have permitted anyone eligible to vote in Wisconsin to an accommodation that would permit that voter to cast a ballot after signing an affidavit stating that they could not easily obtain an ID.

News Law and Policy

Texas Court Greenlights Discrimination Against Transgender Students

Jessica Mason Pieklo

The ruling was not a decision on the merits of the Obama administration’s policy, but rather whether it followed the correct procedure in crafting it, U.S. District Judge Reed O’Connor wrote.

A federal judge in Texas on Sunday issued a preliminary injunction barring the Obama administration from enforcing guidelines designed to protect transgender students from discrimination in schools.

The ruling came in the multi-state lawsuitTexas v. United States, challenging the Obama administration’s guidance to schools that receive federal funding that transgender students must be given access to bathrooms that align with their gender identity rather than their biological sex.

Schools that defy the White House’s guidance would face potential loss of funding or federal lawsuits.

The lawsuit brought by Texas and states including Alabama, Georgia, Oklahoma, and Tennessee, targets various federal memos and statements that served as the foundation for the administration’s position that the Title IX of the U.S. Education Amendments of 1972 federal ban on sex discrimination encompasses gender identity discrimination. The administration charges that transgender people should be allowed to use restrooms consistent with their gender identity.

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The administration overstepped its authority in issuing the statement in violation of both the Administrative Procedure Act and the Constitution, according to the states challenging the guidance.

A nearly identical lawsuit challenging the White House’s policy was filed recently by the state of Nebraska. That lawsuit was joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming.

U.S. District Judge Reed O’Connor wrote that the administration failed to engage in the proper administrative rule making process when directing schools to not discriminate against transgender students in access to restrooms and facilities. The ruling, O’Connor wrote, was not a decision on the merits of the administration’s policy, but rather whether it followed the correct procedure in crafting it.

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor said in his ruling. “The resolution of this difficult policy issue is not, however, the subject of this order.”

Sunday’s ruling comes shortly after the Supreme Court put on hold a federal appeals court ruling ordering a Virginia county school board to allow a transgender student access to the restroom that aligned with his gender identity.

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