PLANNED PARENTHOOD of WISCONSIN, INC., Et Al., Plaintiffs

908 806 FEDERAL REPORTER, 3d SERIES nuity of care, Wisconsin did not require PLANNED PARENTHOOD OF doctors performing other outpatient medi- WISCONSIN, INC., et al., cal procedures to have admitting privi- Plaintiffs–Appellees, leges, statute would substantially curtail v. availability of abortion in Wisconsin given that some abortion providers would likely Brad D. SCHIMEL, Attorney General close, wait times would increase to meet of Wisconsin, et al., Defendants– demand which could result in some women Appellants. having to forego abortion or obtain second- No. 15–1736. trimester abortion, and there would likely United States Court of Appeals, be increased costs of travel, which would Seventh Circuit. be prohibitive for poor women. U.S.C.A. Const.Amend. 14; W.S.A. 253.095. Argued Oct. 1, 2015. 2. Constitutional Law 2480 Decided Nov. 23, 2015. O Background: Abortion providers and af- The courts have an independent con- filiated doctors employed by providers stitutional duty to review a legislature’s brought § 1983 action against state offi- factual findings where constitutional rights cials, alleging statute requiring physicians are at stake. who provided abortion services to have 3. Constitutional Law 955 admitting privileges at a hospital within 30 O The proposition that the harm to a miles of the abortion clinic was unconstitu- constitutional right can be measured by tional. The United States District Court the extent to which it can be exercised in for the Western District of Wisconsin, Wil- another jurisdiction is a profoundly mis- liam M. Conley, Chief Judge, granted a taken assumption. permanent injunction against enforcement of the statute. State appealed. 4. Constitutional Law 3037 O Holding: The Court of Appeals, Posner, The obligation of the State to give the Circuit Judge, held that statute placed un- protection of equal laws can be performed due burden on women seeking abortion, only where its laws operate, that is, within and thus was unconstitutional. its own jurisdiction, and it is there that the Affirmed. equality of legal right must be maintained; Manion, Circuit Judge, filed dissenting that obligation is imposed by the Constitu- opinion. tion upon the States severally as govern- mental entities, each responsible for its own laws establishing the rights and duties 1. Abortion and Birth Control 110 O of persons within its borders, and it is an Constitutional Law 3766, 4452 obligation the burden of which cannot be O Wisconsin statute requiring physicians cast by one State upon another, and no who provided abortion services to have State can be excused from performance by admitting privileges at hospital within 30 what another State may do or fail to do. miles of abortion clinic placed undue burden on women seeking abortion, and thus 5. Abortion and Birth Control 108 O violated Fourteenth Amendment equal An abortion-restricting statute sought protection and due process clauses; admit- to be justified on medical grounds requires ting privileges did not contribute to conti- not only reason to believe that the medical PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 909 Cite as 806 F.3d 908 (7th Cir. 2015) grounds are valid, but also reason to be- Before POSNER, MANION, and lieve that the restrictions are not dispro- HAMILTON, Circuit Judges. portionate, in their effect on the right to an abortion, to the medical benefits that POSNER, Circuit Judge. the restrictions are believed to confer, and On July 5, 2013, the Governor of Wis- so do not impose an undue burden on consin signed into law a statute that the women seeking abortions. Wisconsin legislature had passed the pre- vious month. So far as relates to this ap- 6. Abortion and Birth Control 104, peal the statute prohibits a doctor, under O 105 threat of heavy penalties if he defies the To determine whether the burden im- prohibition, from performing an abortion posed by a statute restricting access to (and in Wisconsin only doctors are allowed abortion is undue, or excessive, the court to perform abortions, Wis. Stat. must weigh the burdens against the state’s § 940.15(5)) unless he has admitting privi- justification, asking whether and to what leges at a hospital no more than 30 miles extent the challenged regulation actually from the clinic in which the abortion is advances the state’s interests; if a burden performed. Wis. Stat. § 253.095(2). significantly exceeds what is necessary to A doctor granted admitting privileges by advance the state’s interests, it is undue, a hospital becomes a member of the hospi- which is to say unconstitutional. tal’s staff and is authorized to admit patients to that hospital and to treat them West Codenotes there; that is the meaning of ‘‘admitting privileges.’’ Of course any doctor (in fact Held Unconstitutional any person) can bring a patient to an W.S.A. 253.095. emergency room to be treated by the doctors employed there. A hospital that has an emergency room is obliged to admit and to treat a patient requiring emergency care even if the patient is uninsured. 42 U.S.C. § 1395dd(b)(1). Moreover, all Wis- Laurence Jacques Dupuis, Attorney, consin abortion clinics are required by law American Civil Liberty Union of Wiscon- (see Wis. Admin. Code Med. § 11.04(1)(g)) sin, Milwaukee, WI, Carrie Y. Flaxman, to have transfer agreements with local Attorney, Planned Parent Federation of hospitals to streamline the process of America, Washington, DC, Lester A. transferring the patient from the abortion Pines, Attorney, Cullen Weston Pines & clinic to a nearby hospital, which could be Bach LLP, Madison, WI, Roger K. Evans, important if the patient would be better Attorney, Diana Salgado, Attorney, served elsewhere in a hospital than the Planned Parenthood Federation of Amer- emergency room—though in that event the ica, New York, N.Y., for Plaintiffs–Appel- emergency room doctors would send her to lees. the part of the hospital in which she could Brian Patrick Keenan, Attorney, Clay- best be served. ton P. Kawski, Attorney, Office of the At- Planned Parenthood of Wisconsin and torney General Wisconsin Department of Milwaukee Women’s Medical Services Justice, Madison, WI, for Defendants–Ap- (also known as Affiliated Medical Services, pellants. commonly referred to as AMS)—which op- 910 806 FEDERAL REPORTER, 3d SERIES erate the only four abortion clinics in Wis- But we explained in our opinion upholding consin—joined by two doctors employed the preliminary injunction that the plain- by Planned Parenthood, filed suit on the tiffs have standing. The cases are legion day the governor signed the statute into that allow an abortion provider, such as law. The plaintiffs challenged the stat- Planned Parenthood of Wisconsin or AMS, ute’s constitutionality under 42 U.S.C. to sue to enjoin as violations of federal law § 1983, which provides a tort remedy for (hence litigable under 42 U.S.C. § 1983) violations of federal law by state officials state laws that restrict abortion. These or other state employees. The plaintiffs cases emphasize not the harm to the abor- sought and obtained first a temporary re- tion clinic of making abortions very diffi- straining order and then a preliminary in- cult to obtain legally, though that might be junction against enforcement of the statute an alternative ground for recognizing a (not the entire statute, just the provision clinic’s standing, but rather ‘‘the confiden- regarding admitting privileges for abortion tial nature of the physician-patient rela- doctors—but for simplicity we’ll generally tionship and the difficulty for patients of call that provision ‘‘the statute’’). directly vindicating their rights without compromising their privacy,’’ as a result of The defendants (the Wisconsin attorney which ‘‘the Supreme Court has entertained general, Wisconsin district attorneys, the both broad facial challenges and pre-en- Wisconsin Secretary of the Department of forcement as-applied challenges to abor- Safety and Professional Services, and tion laws brought by physicians on behalf members of the state’s Medical Examining of their patients.’’ Isaacson v. Horne, 716 Board) appealed from the grant of the F.3d 1213, 1221 (9th Cir.2013); see also preliminary injunction. 28 U.S.C. Richard H. Fallon, Jr., ‘‘As–Applied and § 1292(a)(1). We affirmed the grant in Facial Challenges and Third–Party Stand- Planned Parenthood of Wisconsin, Inc. v. ing,’’ 113 Harv. L. Rev. 1321, 1359–61 Van Hollen, 738 F.3d 786 (7th Cir.2013). (2000). That cleared the way for the district judge A related consideration, important in to conduct a full trial, which he did. The this case as we’ll see, is the heterogeneity trial culminated in his granting a perma- of the class that is likely to be affected by nent injunction against enforcement of the the Wisconsin statute. If one of the abor- statute, which was the relief sought by the tion clinics in the state closes, placing in- plaintiffs. The defendants (essentially, the creased demand on the others, some state) have again appealed, arguing that women wanting an abortion will experi- the statute protects the health of women ence delay in obtaining, or may even be who experience complications from an unable to obtain, an abortion, yet not real- abortion. The plaintiffs disagree, arguing ize that the new law is likely to have been that if allowed to go into effect the statute the cause. Those women would be un- would not protect the health of women but likely to sue. Other women might be able would simply make it more difficult for to find an abortion doctor who had admit- them to obtain abortions, period, in viola- ting privileges at a nearby hospital, yet tion of constitutional rights recognized by still incur costs and delay because the law the U.S.

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