Analysis Law and Policy

As SCOTUS Steps Into Fight Over Clinic Closure Laws, Another Appeals Court Rules They Should Be Blocked

Jessica Mason Pieklo

Monday's decision from the Seventh Circuit Court of Appeals made a forceful case to the Roberts Court to block a similar Texas measure under consideration. Let's hope the justices read the opinion.

Just over a week after the U.S. Supreme Court announced that it would step into the fight over clinic closure laws that have been allowed to take effect in Texas, a federal appeals court ruled a similar Wisconsin law should remain blocked permanently.

Judge Richard Posner wrote the decision for the U.S. Court of Appeals for the Seventh Circuit affirming U.S. District Court Judge William Conley’s March decision that Act 37, which mandates that doctors providing abortions in Wisconsin have admitting privileges at a nearby hospital or face felony charges, would place an undue burden on women’s access to safe and legal abortion and should be permanently blocked. Gov. Scott Walker signed Act 37 into law on July 5, 2013. It required providers to have privileges in place by July 8, giving them a mere three days to comply.

Posner, in his decision, did not just rake the Walker administration over the coals for its brazenly political attempts to cut out legal abortion in the state. Posner is also speaking directly to the justices of the U. S. Supreme Court who will soon hear arguments over a similar provision in Texas. The justices are also, for some undisclosed reason, still sitting on Jackson v. Currier, the case where Mississippi argued it should be able to close its only clinic in the state because patients could always travel to Alabama, Arkansas, or Louisiana to get an abortion. You know, neighboring states where abortion access is apparently as free as the wind.

The three-judge panel on Monday affirmed Conley’s ruing that the law does not enhance patient safety and would impose an undue burden on women seeking abortion care. “Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure—abortion—that rarely produces a medical emergency,” Posner wrote.

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Only four health centers provide abortion in Wisconsin, and only one of those performs abortions after 20 weeks’ gestation. If this law were permitted to take effect, one of those health centers would be forced to close immediately, and the remaining three will not be able to absorb the unmet need, the court found. This could delay procedures by up to ten weeks, forcing abortions later in pregnancy or preventing women from having one at all.

Attorneys for the State of Wisconsin argued any uptick in later abortions could be absorbed by clinics in neighboring Chicago. Attorneys for the State of Mississippi made a similar argument when defending the admitting privileges requirement designed to close the only remaining abortion provider in the state. When summing up Wisconsin’s arguments in his decision, Judge Posner perfectly captured the contempt anti-choice lawmakers must feel toward their constituents who need reproductive health care: “No problem, argues the state, since Chicago is only 90 miles from Milwaukee, and there is at least one clinic in Chicago that will perform abortions after 19 weeks.”

It is a shockingly callous—not to mention unconstitutional—argument for states like Wisconsin to make: that they can pass off to neighboring states the responsibility to make sure their own residents can exercise their fundamental civil rights. Of course it is a problem, which is what makes Posner summarizing the Walker administration as shrugging its shoulders while it forces patients into increasingly out-of-reach procedures all the more of an indictment of Wisconsin lawmakers.

Forcing patients to travel to access their rights is not just a constitutional problem either, Posner noted in the opinion. “It’s also true,” Posner wrote, “that a 90-mile trip is no big deal for persons who own a car or can afford an Amtrak or Greyhound ticket. But more than 50 percent of Wisconsin women seeking abortions have incomes below the federal poverty line and many of them live in Milwaukee (and some north or west of that city and so even farther away from Chicago).”

Posner continued, “For them a round trip to Chicago, and finding a place to stay overnight in Chicago should they not feel up to an immediate return to Wisconsin after the abortion, may be prohibitively expensive. The State of Wisconsin is not offering to pick up the tab, or any part of it.”

As Posner’s opinion detailed, contrary to “no problem” arguments the state’s attorneys made defending the law, this is very much a problem. “These women may also be unable to take the time required for the round trip away from their work or the care of their children,” Posner wrote. “The evidence at trial, credited by the district judge, was that 18 to 24 percent of women who would need to travel to Chicago or the surrounding area for an abortion would be unable to make the trip.”

In other words, nearly a quarter of the patients who would be forced to travel out-of-state should the admitting privileges law take effect would simply not be able to access the abortion care they need. That is not some intellectualized “undue burden”; it is a very real crisis for fundamental human rights.

Monday’s opinion, though, is at its best when it directly takes on the conservative Fifth Circuit Court of Appeals judges who upheld Texas’ admitting privileges and ambulatory surgical center requirements. “A great many Americans, including a number of judges, legislators, governors, and civil servants, are passionately opposed to abortion—as they are entitled to be,” the opinion stated. “But persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them,” Posner wrote.

“They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion. This is true of the Texas requirement, upheld by the Fifth Circuit in the Whole Woman’s case now before the Supreme Court that abortion clinics meet the standards for ambulatory surgical centers—a requirement that if upheld will permit only 8 of Texas’s abortion clinics to remain open, out of more than 40 that existed when the law was passed,” wrote Posner.

“And comparably in our case the requirement of admitting privileges cannot be taken seriously as a measure to improve women’s health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency,” Posner wrote.

Judge Posner is done with this nonsense of even entertaining that clinic shutdown laws are about promoting patient health, y’all. He has had enough. And he did his damnedest in Monday’s opinion to make it clear to the justices of the Roberts Court they too should be finished with these nonsense laws. Let’s hope they read his opinion.

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