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 bur- den 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 pa- tients 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 doc- tors 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. Supreme Court. had reduced the number of doctors who There might appear to be a question are allowed to perform abortions. Suits about standing to sue, since the principal to recover the costs, including some quan- victims of the statute are women desiring tification of the cost of delay, would be abortions and none of them is a plaintiff. awkward. A suit by clinics and doctors PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 911 Cite as 806 F.3d 908 (7th Cir. 2015)

seeking injunctive relief is more feasible obtain admitting privileges at one hospital and if successful gives the women what and nine months for her to obtain them at they want. If the clinics and doctors win, another hospital. Moreover, hospitals are the patients win. permitted rather than required to grant And finally the Supreme Court held in such privileges, and some may be reluctant Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. to grant admitting privileges to abortion 739, 35 L.Ed.2d 201 (1973) (the companion doctors because there is great hostility to case to Roe v. Wade, 410 U.S. 113, 93 S.Ct. abortion in Wisconsin, though as we’ll see 705, 35 L.Ed.2d 147 (1973)), that abortion hospitals have now granted such privileges doctors (remember that the two individual to a number of the state’s abortion doctors. plaintiffs in this case are doctors employed States that have passed laws similar to by abortion clinics) have first-party stand- Wisconsin’s have allowed much longer im- ing to challenge laws limiting abortion plementation time than a weekend—for when, as in Doe and the present case as example, Mississippi allowed 76 days from well, penalties for violation of the laws are statutory approval date to effective date, visited on the doctors. Wis. Stat. Alabama 83 days, and Texas 103 days. §§ 253.095(3), (4); see Planned Parent- 2012 Miss. Gen. Laws 331 (H.B. 1390), hood of Southeastern Pennsylvania v. Ca- enjoined in Jackson Women’s Health Or- sey, 505 U.S. 833, 903–04, 909, 112 S.Ct. ganization v. Currier, 760 F.3d 448 (5th 2791, 120 L.Ed.2d 674 (1992) (plurality Cir.2014); 2013 Ala. Legis. Serv.2013–79 opinion); Planned Parenthood of Central (H.B. 57), enjoined in Planned Parenthood Missouri v. Danforth, 428 U.S. 52, 62, 96 Southeast, Inc. v. Bentley, 951 F.Supp.2d S.Ct. 2831, 49 L.Ed.2d 788 (1976); Karlin 1280 (M.D.Ala.2013); 2013 Tex. Sess. Law v. Foust, 188 F.3d 446, 456 n. 5 (7th Cir. Serv. 2nd Called Sess. Ch. 1 (H.B. 2), 1999); Planned Parenthood of Wisconsin upheld in Planned Parenthood of Greater v. Doyle, 162 F.3d 463, 465 (7th Cir.1998). Texas Surgical Health Services v. Abbott, Although signed into law on a Friday 748 F.3d 583 (5th Cir.2014). True, the (July 5, 2013), Wisconsin’s statute required statute had been passed by the Wisconsin compliance—the possession, by every doc- legislature weeks rather than days before tor who performs abortions, of admitting it took effect, but weeks aren’t enough privileges at a hospital within a 30–mile time in which to get admitting privileges, radius of each clinic at which the doctor and until the governor signed the law performs abortions—by the following Sun- there could be no certainty that it would day (July 7, 2013). See Wis. Stat. become law; until then the abortion doc- §§ 253.095(2), 991.11. There was no way tors would not know whether they’d be an abortion doctor, or any other type of required to obtain such privileges. doctor for that matter, could obtain admit- As of July 7 none of the doctors at ting privileges so quickly, and there either the AMS clinic (in Milwaukee) or wouldn’t have been a way even if the two Planned Parenthood’s Appleton clinic had days hadn’t been weekend days. As the admitting privileges at a hospital within district court found, it takes a minimum of the required 30–mile distance from the one to three months to obtain admitting clinic, and neither did two of the doctors at privileges and often much longer. It took Planned Parenthood’s Milwaukee clinic. ten months for one of the individual plain- On the date of oral argument of the appeal tiffs to obtain admitting privileges. It from the grant of the preliminary injunc- took eight months for the other one to tion—almost five months after the law 912 806 FEDERAL REPORTER, 3d SERIES would have taken effect had it not been for tions is endangered if their abortion doc- that injunction and the temporary re- tors don’t have admitting privileges. The straining order that preceded it—the ap- district court correctly found that there is plication of one of the doctors for admit- no reason to believe that. A woman who ting privileges had been denied and none experiences complications from an abor- of the applications of the others had been tion (either while still at the clinic where granted. Had enforcement of the statute the abortion was performed or at home not been stayed, two of the state’s four afterward) will go to the nearest hospital, abortion clinics—the one in Appleton (the which will treat her regardless of whether only one north of Milwaukee) and one of her abortion doctor has admitting privi- the Milwaukee clinics—would have had to leges. As pointed out in a brief filed by shut down because none of their doctors the American College of Obstetricians and had admitting privileges at a hospital with- Gynecologists, the American Medical Asso- in the prescribed radius; and the capacity ciation, and the Wisconsin Medical Society, of a third clinic to perform abortions would ‘‘it is accepted medical practice for hospi- have shrunk in half. tal-based physicians to take over the care of a patient and whether the abortion pro- The state points out that abortion doc- vider has admitting privileges has no im- tors have now had more than two years pact on the course of the patient’s treat- since the statute was enacted in which to ment.’’ As Dr. Serdar Bulun, the expert obtain admitting privileges. But the legis- witness appointed in this case by the dis- lature’s intention to impose the two-day trict judge under Fed.R.Evid. 706, testi- deadline, the effect of which would have fied, the most important factor would not been to force half the Wisconsin abortion be admitting privileges, but whether there clinics to close for months, is difficult to was a transfer agreement between the explain save as a method of preventing clinic and the hospital. As we’ve said, abortions that women have a constitutional abortion doctors in Wisconsin are required right to obtain. The state tells us that to have such transfer agreements. See ‘‘there is no evidence the [Wisconsin] Leg- Wis. Admin. Code Med. § 11.04(1)(g). islature knew AMS physicians would be The treating doctor at the hospital proba- unable to comply with the Act.’’ That in- bly would want to consult with the doctor sults the legislators’ intelligence. How who had performed the abortion, but for could they have thought that an abortion such a consultation the abortion doctor doctor, or any doctor for that matter, could would not need admitting privileges. obtain admitting privileges in so short a As it happens, complications from an time as allowed? The clinics would have abortion are both rare and rarely danger- had to close, and months would have ous—a fact that further attenuates the passed before they could reopen. need for abortion doctors to have admit- The fixing of such a short deadline for ting privileges. Two studies cited in the obtaining admitting privileges, a deadline amicus curiae brief filed by the American likely to deny many women the right to an College of Obstetricians and Gynecologists abortion for a period of months while the et al. and credited by the district judge— abortion doctors tried to obtain those privi- Tracy A. Weitz et al., ‘‘Safety of Aspiration leges, could be justified consistently with Abortion Performed by Nurse Practition- the Supreme Court’s abortion jurispru- ers, Certified Nurse Midwives, and Physi- dence only if there were reason to believe cian Assistants Under a California Legal that the health of women who have abor- Waiver,’’ 103 Am. J. Public Health 454, PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 913 Cite as 806 F.3d 908 (7th Cir. 2015)

457–58 (2013), and Kelly Cleland et al., One doctor with extensive experience in ‘‘Significant Adverse Events and Outcomes obstetrics and gynecology told about a After Medical Abortion,’’ 121 Obstetrics & case in which a woman with a complication Gynecology 166, 169 (2013)—find that com- from an abortion might, he thought, have plications occur in only 1 out of 112 physi- avoided a hysterectomy if her abortion cian-performed first-trimester aspiration doctor had called the hospital or had had abortions (the most common type of surgi- admitting privileges. That is the only evi- cal abortion), and that 94 percent of those dence in the record that any woman whose complications are ‘‘minor.’’ Weitz et al., abortion resulted in a medical complication supra, at 457–58 tab. 2. For medical abor- has ever, anywhere in the United States, tion (abortion by pill), the rate of complica- been made worse off by being handed over tions is only 1 in 153. Cleland et al., by her abortion doctor to a gynecologist, supra, at 169 tab. 2. The official Wisconsin or other specialist with relevant expertise, figure for 2013 is even lower: 1 complica- employed by the hospital to which she’s tion per 404 abortions of all types. And taken. And the example doesn’t actually finally only 1 in 1937 physician-conducted have anything to do with admitting privi- aspiration abortions result in major com- leges. The abortion doctor didn’t need plications (a category which includes hospi- admitting privileges at a hospital in order tal admissions), and 1 in 1732 medical to call an ambulance to take his patient to abortions require hospital admission. the nearest hospital, or to communicate Weitz et al., supra, at 456, 458–59; Cleland with the treating doctor at the hospital— et al., supra, at 169 tab. 2. neither of which he did. As the district These studies have found that the rate judge found, in the case of abortion ‘‘any of complications is below 1 percent; in the benefit of admitting privileges in terms of case of complications requiring hospital ad- continuity of care is incrementally small.’’ missions it is one-twentieth of 1 percent. The rate of complications for second-tri- And as noted, Wisconsin abortion clin- mester surgical abortions is slightly high- ics—uniquely, it appears, among outpa- er—1.3 percent. Anna C. Frick et al., tient providers of medical services in Wis- ‘‘Effect of Prior Cesarean Delivery on Risk consin—are required by law to adopt of Second–Trimester Surgical Abortion transfer protocols intended to assure Complications,’’ 115 Obstetrics & Gynecol- prompt hospitalization of any abortion pa- ogy 760 (2010). In the five-year period tient who experiences complications seri- 2009 to 2013, only 12 women who had ous enough to require hospitalization. See abortions at clinics in Wisconsin experi- Wis. Admin. Code Med. § 11.04(1)(g). enced complications requiring transfer from clinic to hospital. Fifteen additional The state presented no other evidence of women who had received abortions at a complications from abortions in Wisconsin Planned Parenthood clinic and left the clin- that were not handled adequately by the ic without apparent complications later hospitals in the state. And no documenta- sought treatment at a hospital. The rec- tion of a medical need for requiring abor- ord does not contain a comparable figure tion doctors to obtain admitting privileges for the AMS clinic. There is no evidence had been presented to the Wisconsin legis- that any of these women received inade- lature when it was deliberating on the bill quate hospital care because the doctors that became the statute challenged in this who had performed their abortions lacked case. The only medical evidence that had admitting privileges. been submitted to the legislature had come 914 806 FEDERAL REPORTER, 3d SERIES from a doctor representing the Wisconsin rather than one medically induced)—pro- Medical Society—and she opposed requir- cedures medically similar to abortion. ing that abortion doctors obtain admitting Dr. John Thorp, Jr., an expert witness privileges. The only testimony presented for the defendants, testified that abortion to the legislature that admitting privileges is more dangerous than D & C or hyster- are important to continuity of care was oscopy because there is increased blood presented by a representative of Wisconsin flow during a pregnancy. But one of the Right to Life who happens not to be a plaintiffs’ experts, Dr. Douglas Laube, doctor. Indeed the legislative delibera- countered that a pregnant uterus responds tions virtually ignored the provision con- better to treatments to stop bleeding, mak- cerning admitting privileges, focusing in- ing the risk of the procedures roughly the stead on another provision—a requirement same. The district judge was entitled to not challenged in this suit that a woman credit Laube’s testimony over Thorp’s, and seeking an abortion obtain an ultrasound credit too the studies placed in evidence examination of her uterus first (if she that showed how rare major complications hadn’t done so already), which might in- of both hysteroscopy and second-trimester duce her to change her mind about having surgical abortion are. See Morris Wort- an abortion. Wis. Stat. man et al., ‘‘Operative Hysteroscopy in an § 253.10(3)(c)(1)(gm). Office–Based Surgical Setting: Review of No other procedure performed outside a Patient Safety and Satisfaction in 414 hospital, even one as invasive as a surgical Cases,’’ 20 J. Minimally Invasive Gyne- abortion, is required by Wisconsin law to cology 56 (2013); T.C. van Kerkvoorde et be performed by doctors who have admit- al., ‘‘Long-term Complications of Office ting privileges at hospitals within a speci- Hysteroscopy: Analysis of 1028 Cases,’’ 19 fied radius of where the procedure is per- id. 494 (2012); Frick et al., supra. formed. And that is the case even for Dr. Thorp acknowledged, moreover, that procedures performed when the patient is admitting privileges are no more impor- under general anesthesia, and even though tant for abortions than for other outpatient more than a quarter of all surgical opera- procedures. Yet Wisconsin appears to be tions in the United States are now per- indifferent to complications of any other formed outside of hospitals. Karen A. outpatient procedures, even when they are Cullen et al., ‘‘Ambulatory Surgery in the far more likely to produce complications United States, 2006,’’ Centers for Disease than abortions are. For example, the rate Control and Prevention: National Health of complications resulting in hospitalization Statistics Reports No. 11, Sept. 4, 2009, p. from colonoscopies done for screening pur- 5, www.cdc.gov/nchs/data/nhsr/nhsr011.pdf poses is four times the rate of complica- (visited Nov. 21, 2015, as was the other tions requiring hospitalization from first- website cited in this opinion). And that is trimester abortions. See Cynthia W. Ko true even for such gynecological proce- et al., ‘‘Serious Complications Within 30 dures as diagnostic dilation and curettage Days of Screening and Surveillance Colo- (D & C) (removal of tissue from the inside noscopy Are Uncommon,’’ 8 Clinical Gas- of the uterus), hysteroscopy (endoscopy of troenterology & Hepatology 166, 171–72 the uterus), and surgical completion of (2010). Operative colonoscopy has an even miscarriage (surgical removal of fetal tis- higher rate of major complications, making sue remaining in the uterus after a miscar- it riskier than even second-trimester abor- riage, which is a spontaneous abortion tions. See Jerome D. Waye et al., ‘‘Colo- PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 915 Cite as 806 F.3d 908 (7th Cir. 2015) noscopy: A Prospective Report of Compli- a hospital farther from the clinic. If she cations,’’ 15 J. Clinical Gastroenterology calls an ambulance the paramedics are 347 (1992). It is conceivable that because likely to take her to the nearest hospital— of widespread disapproval of abortion, a hospital at which her abortion doctor is abortions and their complications may be unlikely to have admitting privileges. underreported—some women who experi- Likewise in the case of surgical abortions ence them and are hospitalized may tell when complications occur not at the clinic the hospital staff that the complications during or immediately after the abortion are from a miscarriage. But there is no but after the patient has returned home. evidence of significant or widespread un- Because of distance, she may lack ready derreporting. access to hospitals near the clinic at which The defendants argue that obtaining ad- the abortion was performed. She may live mitting privileges operates as a kind of near a hospital, but not a hospital at which Good Housekeeping Seal of Approval for a the doctor who performed her abortion has doctor. True; but obtaining the seal does admitting privileges. not require that the hospital in which the We can imagine an argument that what doctor obtains the privileges be within 30 Wisconsin did in this case was to make the miles of his clinic. See, e.g., Women’s regulation of the treatment of abortion Health Center of West County, Inc. v. complications simply the first step on the Webster, 871 F.2d 1377, 1378–81 (8th Cir. path to a regulation of all potentially seri- 1989). Several abortion doctors in Wiscon- ous complications. But the defendants sin who lack admitting privileges at hospi- have not argued this; nor is it plausible tals within the prescribed radius have that the state would begin such an effort them—their Good Housekeeping Seals of with a procedure that has a very low rate Approval—at more distant hospitals from of serious complications. The statute has their clinic yet are not excused by the been on the books for more than two statute from having to obtain the identical years, yet there is no indication that the privileges from a hospital within the 30– legislature has given any consideration to mile radius. requiring admitting privileges for any doc- The defendants argue that admitting tors other than abortion providers. privileges improve continuity of care. But The district judge had remarked in nothing in the statute requires an abortion granting the preliminary injunction that doctor who has admitting privileges to while he would ‘‘await trial on the issue, care for a patient who has complications TTT the complete absence of an admitting from an abortion. He doesn’t have to privileges requirement for [other] clinical accompany her to the hospital, treat her [i.e., outpatient] procedures including for there, visit her, call her, etc. The statute those with greater risk [than abortion] is also does not distinguish between surgical certainly evidence that [the] Wisconsin and medical abortions. The latter term Legislature’s only purpose in its enactment refers to an abortion induced by pills given was to restrict the availability of safe, legal to the patient by her doctor: she takes one abortion in this State, particularly given pill in the clinic, goes home, and takes an the lack of any demonstrable medical ben- additional pill or pills one or two days later efit for its requirement either presented to to complete the procedure. Her home the Legislature or [to] this court.’’ may be far from any hospital that is within Planned Parenthood of Wisconsin, Inc. v. 30 miles of her doctor’s clinic, but close to Van Hollen, No. 13–cv–465–wmc, 2013 WL 916 806 FEDERAL REPORTER, 3d SERIES

3989238, at *10 n. 26 (W.D.Wis. Aug. 2, the availability of abortion in Wisconsin, 2013) (emphasis in original). Confirmato- without conferring an offsetting benefit (or ry evidence is the statutory two-day dead- indeed any benefit) on women’s health. line for obtaining admitting privileges in Virtually all abortions in Wisconsin are order to be allowed to perform abortions, performed at the four abortion clinics (the though that deadline is of course no longer three Planned Parenthood clinics and the operable. And we can’t forbear to men- AMS clinic); no other clinics perform tion the weird private civil remedy for abortions, and hospitals perform only a violations: The father, or a grandparent, small fraction of the abortions performed of the ‘‘aborted unborn child’’ is entitled to in the state. With the preliminary and obtain damages, including for emotional now the permanent injunction having lifted and psychological distress, if the abortion the deadline for obtaining admitting privi- was performed by a doctor who lacked leges, doctors at the three Planned Parent- admitting privileges. Wis. Stat. hood abortion clinics (Milwaukee, Madison, § 253.095(4)(a). Were the law aimed at and Appleton) have been able to obtain protecting the mother’s health, as the state admitting privileges at nearby hospitals. contends, a violation of the law could harm But the two doctors at the fourth clinic, the fetus’s father or grandparent only if AMS, have been unable to obtain such the mother were injured physically or psy- privileges at any hospital even though 17 chologically as a result of her abortion hospitals are within a 30–mile radius of the doctor’s lacking the required admitting clinic. privileges. But the statute requires no proof of any injury of any kind to the Not that its doctors haven’t tried to mother to entitle the father or grandpar- obtain the privileges. The district court ent to damages upon proof of a violation of found credible their testimony that the the statute. Wis. Stat. § 253.095(4). chances of their being granted admitting privileges are ‘‘slim to none.’’ The reason [1, 2] Until and unless Roe v. Wade is is that almost all of their practice consists overruled by the Supreme Court, a statute of performing abortions and they therefore likely to restrict access to abortion with no lack recent experience in performing inpa- offsetting medical benefit cannot be held to tient medical procedures for which hospi- be within the enacting state’s constitution- tals would grant admitting privileges. al authority. The courts have ‘‘an inde- Nor is any of their clinical practice peer pendent constitutional duty to review [a reviewed, which hospitals also make a con- legislature’s] factual findings where consti- dition of granting admitting privileges. tutional rights are at stake.’’ Gonzales v. One of the doctors couldn’t even obtain an Carhart, 550 U.S. 124, 163–65, 127 S.Ct. application for admitting privileges at Au- 1610, 167 L.Ed.2d 480 (2007). The Wis- rora–Sinai Hospital, because he couldn’t consin statute does not ‘‘further[ ] the le- show that he’d ‘‘treated patients in a hospi- gitimate interest’’ of the state in advancing tal or appropriate outpatient setting in women’s health, and it was not ‘‘reasonable which the Practitioner’s care was subject for [the legislature] to think’’ that it would. to evaluation through peer review accept- Id. at 146, 160, 127 S.Ct. 1610. able to the Metro Credentials Committee, Were it not for the injunctions issued by in the previous twelve (12) months.’’ the district court (and the temporary re- Froedtert Hospital likewise rejected his straining order that preceded them), the application, because he provided neither statute would have substantially curtailed ‘‘evidence of recent (with-in the past 2 PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 917 Cite as 806 F.3d 908 (7th Cir. 2015) years) inpatient activity’’ nor ‘‘an evalua- down unless it can recruit and retain oth- tion of [his] ability to provide care for er doctors—doctors who have or can patients in the inpatient environment.’’ readily obtain admitting privileges within The other AMS doctor was also rejected the prescribed radius of the clinic. But it by Aurora–Sinai, which told him he was is difficult to hire such doctors, not only ineligible to obtain full admitting privileges because it’s difficult for abortion doctors because he would be unable to admit the to obtain admitting privileges (especially required minimum of 20 patients per year, within a prescribed radius of the clinic) and that he could not obtain courtesy privi- but also because of the vilification, leges (which differ from full privileges in threats, and sometimes violence directed allowing a doctor to admit only a very few against abortion clinics and their person- patients) without already having staff priv- nel in states, such as Wisconsin, in which ileges at another hospital. Another hospi- there is intense opposition to abortion. tal, St. Joseph’s Community Hospital of AMS is particularly vulnerable because, West Bend, requires applicants for obstet- as we’re about to see, it’s the only abortion rics/gynecology admitting privileges to clinic in the state that performs late-term have delivered 100 babies in the previous abortions. But were the statute to be two years, by which of course they mean upheld, Planned Parenthood’s clinics could live babies; and delivering live babies is also face having to close or significantly not what abortion doctors do. reduce the abortions they perform, within Moreover, all the hospitals require, as a a few years, despite currently having doc- condition to obtaining admitting privileges, tors with admitting privileges. Hospitals demonstrated competence in performing generally require that a doctor, to main- the particular procedures that the doctor tain his admitting privileges, be responsi- seeks to perform at the hospital on pa- ble for admitting a specified minimum tients that he admits. Although a defense number of patients annually. Because of expert from Columbia St. Mary’s Hospital the very low rate of complications from testified that the hospital would evaluate a abortions that require hospitalization, the physician’s quality without requiring a rec- required quotas may be difficult to meet. ord of inpatient care, he acknowledged One might think (setting that last point that a doctor seeking admitting privileges to one side for the moment) that the would have to demonstrate competence to Planned Parenthood abortion clinic in Mil- perform the specific procedures for which waukee would have adequate capacity to he sought the privileges. Hospitals are serve all women in the Milwaukee area entitled to demand proof that doctors who decide to have an abortion, in which seeking to work at the hospital be able to event the demise of AMS would be no big perform the procedures that they want to deal. Not so. Of some 6462 abortions perform there. But to condition the grant performed in Wisconsin in 2013 (the latest of admitting privileges on being qualified year for which there are complete figures), to perform procedures that AMS’s abor- 5800 were performed in abortion clinics in tion doctors never perform is to bar them the state (see Wisconsin Department of from performing abortions. Health Services, ‘‘Reported Induced Abor- So, as the district judge found, if the tions in Wisconsin, 2013,’’ Aug. 2014, www. statute is valid neither of the AMS doc- dhs.wisconsin.gov/publications/p4/p45360– tors will be allowed to perform any abor- 13.pdf), and 2500 of those were performed tions, and the clinic will have to shut by AMS. (Presumably the 662 abortions 918 806 FEDERAL REPORTER, 3d SERIES not performed in abortion clinics were per- constitute fewer than one percent of the formed in hospitals.) abortions performed in the state, ‘‘the The Planned Parenthood clinic in Mil- analysis does not end with the one percent waukee would have to expand staff and of women upon whom the statute operates; facilities to accommodate such an influx it begins there.’’ Planned Parenthood of (the Planned Parenthood clinic in Appleton Southeastern Pennsylvania v. Casey, su- is more than a hundred miles from Mil- pra, 505 U.S. at 894, 112 S.Ct. 2791 (plu- waukee, and the Madison clinic eighty rality opinion). For the longer the waiting miles, distances that would impose hard- list for an abortion, the more women who ship on some women who live close to want to have early-term abortions will per- Milwaukee and are seeking abortions), and force end up having late-term ones, which this would be costly and could even be are more dangerous. impossible given the difficulty of recruiting No problem, argues the state, since Chi- abortion doctors. The district judge ac- cago is only 90 miles from Milwaukee, and cepted uncontradicted testimony that there is at least one clinic in Chicago that Planned Parenthood could not absorb the will perform abortions after 19 weeks. additional demand for abortions, and the The logic of the state’s position is that it result (of demand exceeding supply) would could forbid both abortion clinics in Mil- be an 8 to 10 week delay in obtaining an waukee to perform abortions on anyone abortion. Some women would have to for- living in that city, given that the Chicago go first-trimester abortions and instead clinics are only about 90 miles away (and get second-trimester ones, which are more one clinic, in the northern suburbs of Chi- expensive and present greater health cago, is only 74 miles from Milwaukee’s risks. Other women would be unable to city center). obtain any abortion, because the delay [3] The state’s position is untenable. would push them past the 18.6–weeks– As we said in Ezell v. City of Chicago, 651 LMP (‘‘last menstrual period,’’ which is F.3d 684, 697 (7th Cir.2011), the proposi- likely to precede conception by a couple of tion that weeks) deadline for the Planned Parent- the harm to a constitutional right [can hood clinics’ willingness to perform abor- be] measured by the extent to which it tions. Only AMS will perform abortions can be exercised in another jurisdiction beyond that limit (up to 22 and occasional- TTT [is] a profoundly mistaken assump- ly 24 weeks of pregnancy). Women seek- tion. In the First Amendment context, ing lawful abortions that late in their preg- the Supreme Court long ago made it nancy, either because of the waiting list or clear that ‘‘one is not to have the exer- because they hadn’t realized their need for cise of his liberty of expression in appro- an abortion sooner, would be unable to priate places abridged on the plea that it obtain abortions in Wisconsin. may be exercised in some other place.’’ AMS performs about 250 late-term Schad v. Borough of Mt. Ephraim, 452 abortions each year (and that’s without the U.S. 61, 76–77, 101 S.Ct. 2176, 68 additional patients who would be pushed L.Ed.2d 671 (1981), quoting Schneider v. past 18.6 weeks by an 8 to 10 week waiting New Jersey, 308 U.S. 147, 163, 60 S.Ct. list). And, to repeat, it’s the only abortion 146, 84 L.Ed. 155 (1939). The same clinic in Wisconsin that performs such principle applies here. It’s hard to abortions. Although the state points out imagine anyone suggesting that Chicago that these late-term abortions currently may prohibit the exercise of a free- PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 919 Cite as 806 F.3d 908 (7th Cir. 2015)

speech or religious-liberty right within comes below the federal poverty line and its borders on the ground that those many of them live in Milwaukee (and some rights may be freely enjoyed in the sub- north or west of that city and so even urbs. farther away from Chicago). For them a [4] Or as the Supreme Court put it in round trip to Chicago, and finding a place Missouri ex rel. Gaines v. Canada, 305 to stay overnight in Chicago should they U.S. 337, 350, 59 S.Ct. 232, 83 L.Ed. 208 not feel up to an immediate return to (1938), Wisconsin after the abortion, may be pro- the obligation of the State to give the hibitively expensive. The State of Wiscon- protection of equal laws can be per- sin is not offering to pick up the tab, or formed only where its laws operate, that any part of it. These women may also be is, within its own jurisdiction. It is unable to take the time required for the there that the equality of legal right round trip away from their work or the must be maintained. That obligation is care of their children. The evidence at imposed by the Constitution upon the trial, credited by the district judge, was States severally as governmental enti- that 18 to 24 percent of women who would ties—each responsible for its own laws need to travel to Chicago or the surround- establishing the rights and duties of per- ing area for an abortion would be unable to sons within its borders. It is an obli- make the trip. gation the burden of which cannot be [5, 6] An abortion-restricting statute cast by one State upon another, and no sought to be justified on medical grounds State can be excused from performance requires not only reason to believe (here by what another State may do or fail to lacking, as we have seen) that the medical do. grounds are valid, but also reason to be- See also Jackson Women’s Health Organi- lieve that the restrictions are not dispro- zation v. Currier, supra, 760 F.3d at 457– portionate, in their effect on the right to 58. It’s true that we said in A Woman’s an abortion, to the medical benefits that Choice–East Side Women’s Clinic v. New- the restrictions are believed to confer and man, 305 F.3d 684, 688 (7th Cir.2002), that so do not impose an ‘‘undue burden’’ on the undue burden standard should be ap- women seeking abortions. See Planned plied ‘‘to the nation as a whole, rather than Parenthood of Southeastern Pennsylvania one state at a time.’’ But the statement, v. Casey, supra, 505 U.S. at 874, 877, 900– though in seeming tension with Gaines 01, 112 S.Ct. 2791 (plurality opinion); Gon- and Jackson, has nothing to do with look- zales v. Carhart, supra, 550 U.S. at 146, ing at the availability of abortion services 157–58, 127 S.Ct. 1610; Stenberg v. Car- across state lines. Instead the court was hart, 530 U.S. 914, 930, 938, 120 S.Ct. 2597, worried that district judges in different 147 L.Ed.2d 743 (2000). To determine states might reach different conclusions whether the burden imposed by the stat- about the constitutionality of nearly identi- ute is ‘‘undue’’ (excessive), the court must cal statutes. ‘‘weigh the burdens against the state’s jus- It’s also true, though according to the tification, asking whether and to what ex- cases just quoted irrelevant, that a 90–mile tent the challenged regulation actually ad- trip is no big deal for persons who own a vances the state’s interests. If a burden car or can afford an Amtrak or Greyhound significantly exceeds what is necessary to ticket. But more than 50 percent of Wis- advance the state’s interests, it is ‘undue,’ ’’ consin women seeking abortions have in- Planned Parenthood Arizona, Inc. v. 920 806 FEDERAL REPORTER, 3d SERIES

Humble, 753 F.3d 905, 913 (9th Cir.2014), Greater Texas Surgical Health Services v. which is to say unconstitutional. The fee- Abbott, supra, 748 F.3d at 597–98, and bler the medical grounds (in this case, they Greenville Women’s Clinic v. Bryant, 222 are nonexistent), the likelier is the burden F.3d 157, 162, 170 (4th Cir.2000), the on the right to abortion to be dispropor- courts decided that the evidence compelled tionate to the benefits and therefore exces- only a conclusion that one clinic in each sive. state would close as a result of the statute There are those who would criminalize and each of those two clinics performed all abortions, thus terminating the consti- only a small proportion of its state’s abor- tutional right asserted in Roe and Casey tions. and a multitude of other decisions. And The Fifth Circuit also upheld another there are those who would criminalize all requirement in the same statute—that abortions except ones that terminate a abortion clinics must meet the standards pregnancy caused by rape or are neces- for ambulatory surgical centers—despite sary to protect the life or (in some ver- the evidence that as a result of this re- sions) the health of the pregnant woman. quirement only eight clinics would survive But what makes no sense is to abridge the out of the more than forty in existence constitutional right to an abortion on the when the statute was enacted. Whole basis of spurious contentions regarding Woman’s Health v. Cole, 790 F.3d 563, 578 women’s health—and the abridgment chal- (5th Cir.2015), cert. granted, ––– U.S. lenged in this case would actually endan- ––––, 136 S.Ct. 499, 193 L.Ed.3d 364, 2015 ger women’s health. It would do that by WL 5176368 (Nov. 13, 2015). The court reducing the number of abortion doctors in remarked the absence of evidence that the Wisconsin, thereby increasing the waiting remaining clinics could not expand their time for obtaining an abortion, and that capacity to compensate for the closing of increase would in turn compel some wom- more than three-fourths of them, id. at en to defer abortion to the second trimes- 590, although one wouldn’t think it neces- ter of their pregnancy—which the studies sary to parade evidence that the remaining we cited earlier find to be riskier than a clinics would find it extremely difficult to first-trimester abortion. For abortions quadruple their capacity to provide abor- performed in the first trimester the rate of tions, which would require, in the face of major complications is 0.05–0.06 percent fierce opposition to abortion clinics and the (that is, between five one-hundredths of 1 difficulty of relocating abortion doctors percent and six one-hundredths of 1 per- from the closed clinics, extensive physical cent). It is 1.3 percent for second-trimes- enlargement to house additional patients ter abortions—between 22 and 26 times and doctors. higher. A great many Americans, including a The burden on abortion imposed by the number of judges, legislators, governors, Wisconsin statute is greater than in the and civil servants, are passionately op- cases in which the Fourth and Fifth Cir- posed to abortion—as they are entitled to cuits have upheld similar admitting privi- be. But persons who have a sophisticated leges requirements, because the plaintiffs understanding of the law and of the Su- in those cases failed to satisfy the courts preme Court know that convincing the that the challenged statutes would lead to Court to overrule Roe v. Wade and a substantial decline in the availability of Planned Parenthood of Southeastern abortion. In both Planned Parenthood of Pennsylvania v. Casey is a steep uphill PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 921 Cite as 806 F.3d 908 (7th Cir. 2015) fight, and so some of them proceed indi- In Planned Parenthood of Greater Tex- rectly, seeking to discourage abortions by as the court excoriated our opinion up- making it more difficult for women to ob- holding the preliminary injunction in the tain them. They may do this in the name present case, on the ground that we had of protecting the health of women who insisted on evidence that requiring abor- have abortions, yet as in this case the tion doctors to have admitting privileges specific measures they support may do would improve women’s health. 748 F.3d little or nothing for health, but rather at 596. The Fifth Circuit said that the strew impediments to abortion. This is ‘‘first step in the analysis of an abortion true of the Texas requirement, upheld by regulation TTT is rational basis review, not the Fifth Circuit in the Whole Woman’s empirical basis review.’’ Id. (emphases in case now before the Supreme Court, that original). Indeed it said ‘‘there is ‘never a abortion clinics meet the standards for am- role for evidentiary proceedings’ under ra- bulatory surgical centers—a requirement tional basis review.’’ Id. We take that to that if upheld will permit only 8 of Texas’s be a reference to the motive for ‘‘rational abortion clinics to remain open, out of basis’’ review of state laws—namely a re- more than 40 that existed when the law luctance by the federal judiciary to invali- was passed. And comparably in our case date state laws that even if difficult to the requirement of admitting privileges defend or explain by reference to sound cannot be taken seriously as a measure to public policy do not cause harm serious improve women’s health because the trans- enough to be classified as depriving per- fer agreements that abortion clinics make sons of life, liberty, or property, however with hospitals, plus the ability to summon broadly those terms are understood. an ambulance by a phone call, assure the But a statute that curtails the constitu- access of such women to a nearby hospital tional right to an abortion, such as the in the event of a medical emergency. Wisconsin and Texas statutes, cannot sur- Opponents of abortion reveal their true vive challenge without evidence that the objectives when they procure legislation curtailment is justifiable by reference to limited to a medical procedure—abortion— the benefits conferred by the statute. The that rarely produces a medical emergency. statute may not be irrational, yet may still A number of other medical procedures are impose an undue burden—a burden exces- far more dangerous to the patient than sive in relation to the aims of the statute abortion, yet their providers are not re- and the benefits likely to be conferred by quired to obtain admitting privileges any- it—and if so it is unconstitutional. where, let alone within 30 miles of where The evidence of benefits that was pre- the procedure is performed. Nor is it sented to the Texas legislature and dis- likely to have been an accident that the cussed by the Fifth Circuit was weak; in Wisconsin legislature, by making its law our case it’s nonexistent. The principal requiring admitting privileges effective im- witness for the State of Wisconsin, Dr. mediately, would have prevented most of Thorp, mentioned earlier, testified that the the abortion doctors in the state from per- death rate for women who undergo abor- forming any abortions for months (for it tions is the same as for other pregnant usually takes months to obtain admitting women. But he could not substantiate privileges) had the district court not issued that proposition and admitted that both a temporary restraining order followed im- rates are very low. His expert report mediately by a preliminary injunction. states that there are ‘‘increased risks of 922 806 FEDERAL REPORTER, 3d SERIES

death for women electing [abortion] com- The state insists that the plaintiffs’ med- pared to childbirth,’’ but the studies he ical expert and the neutral expert agreed cited measured long-term mortality rates with it that admitting privileges would be a rather than death resulting from an abor- good thing for abortion doctors to have. tion, and also failed to control for socioeco- But a fair interpretation of their testimony nomic status, marital status, or a variety of is that a doctor’s admitting privileges are other factors relevant to longevity. See of value to a patient because they suggest David Reardon & Priscilla Coleman, that the hospital that has granted them ‘‘Short and Long Term Mortality Rates thinks well of the doctor and because he Associated with First Pregnancy Outcome: may be able to expedite the admission of a Population Register Based Study for Den- patient who needs hospital care to the mark 1980–2004,’’ 18 Medical Science hospital in which the doctor has those priv- Monitor PH71, PH75 (2012); Coleman et ileges. These witnesses did not testify al., ‘‘Reproductive History Patterns and that an abortion doctor who lacks admit- Long–Term Mortality Rates: A Danish, ting privileges is a danger to his patients. Population–Based Record Linkage Study,’’ The neutral expert, Dr. Bulun, said that 23 European J. Public Health 569, 569, privileges could have advantages, but he 573 (2012). In contrast, the plaintiffs’ ex- was comparing a doctor with privileges to pert Dr. Laube tendered a more apt study one without privileges; he was not asked which concluded that the risk of death whether a shortage of abortion doctors, associated with childbirth is 14 times high- though such abortion doctors as there er than that associated with abortion. See were all had privileges, would be prefera- Elizabeth G. Raymond & David A. Grimes, ble to there being enough abortion doctors ‘‘The Comparative Safety of Legal Induced but not all with admitting privileges. He added that ‘‘if there’s a well-established Abortion and Childbirth in the United procedure for a transfer agreement, in my States,’’ 119 Obstetrics & Gynecology 215 mind that would be the most important (Feb.2012). factor to ensure good quality of care.’’ Dr. Thorp acknowledged that the num- There is no evidence that transfer agree- ber of abortion providers is declining, but ments provide inferior protection to the attributed this (again without substantia- health of women undergoing abortion com- tion) not to harassment but to our society’s pared to admitting privileges. When the ‘‘progressing in its recognition of what con- transfer agreements and the availability of stitutes human life.’’ And he agreed as we emergency-room care and the rarity of noted earlier that admitting privileges are complications of abortion that require hos- no more necessary for abortion than for pitalization are compared to the impact other outpatient surgical procedures. Nei- this statute would have on access to abor- ther Thorp nor any other witness for the tion in Wisconsin, it is apparent that the defendants was able to cite a case in which defendants have failed to make a dent in a woman who had a complication from an the district court’s opinion granting the abortion wasn’t properly treated for it be- permanent injunction sought by the plain- cause her abortion doctor lacked admitting tiffs. privileges. The evidence was heavily AFFIRMED weighted against the defendants. We do not agree with the Fifth Circuit that evi- MANION, Circuit Judge, dissenting. dence is irrelevant in a constitutional case In June 2013, the Wisconsin legislature concerning abortion. introduced a statute requiring abortion PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 923 Cite as 806 F.3d 908 (7th Cir. 2015)

doctors to have admitting privileges at a plications—potentially even death—would nearby hospital. The statute was signed regard state measures designed to mini- into law the following month, and the mize those risks as an imposition on her plaintiffs obtained a preliminary injunction constitutional rights. After all, patients from the district court, which we affirmed. are more likely to undergo medical proce- Planned Parenthood of Wis., Inc. v. Van dures when they know that discrete meas- Hollen, 738 F.3d 786 (7th Cir.2013). The ures have been taken by the state to re- district court then granted a permanent duce the likelihood of harm. Recognizing injunction on the merits, finding that the these basic facts, the four other federal admitting-privileges requirement unconsti- appellate circuits that have examined simi- tutionally infringed on a woman’s right to lar admitting-privilege requirements have abortion. Planned Parenthood of Wis., found or assumed a rational basis for Inc. v. Van Hollen, 94 F.Supp.3d 949 them. This is such common sense that it (W.D.Wis.2015). Relying on the novel le- would scarcely warrant mention in any gal standard crafted by the majority in other context. But this case involves abor- Van Hollen, the district court reached this tion, so all bets are off. result by shifting the burden onto the state Safety is not a negligible concern in any to adduce empirical evidence justifying the field of healthcare. Abortion—which is rationality of its regulation. Id. at 962–64. subject to less regulatory oversight than This was error. Under well-established almost any other area of medicine—bears Supreme Court precedent, the state may no exception. When we first reviewed constitutionally regulate abortion so long Wisconsin’s admitting-privileges require- as it has a rational basis to act and does ment, my concurrence cited numerous ex- not impose an undue burden. Gonzales v. amples of egregious ‘‘abortion care’’ in Carhart, 550 U.S. 124, 158, 127 S.Ct. 1610, states across the nation. One article de- 167 L.Ed.2d 480 (2007). Because Wiscon- tailed the practices at former abortionist sin’s admitting-privileges requirement sat- Kermit Gosnell’s clinic in Pennsylvania, isfies this standard, I dissent. which included unlicensed personnel con- ducting gynecological examinations and ad- ministering painkillers. These practices I resulted in the death of a patient named Between 2009 and 2013, at least nine- Karnamaya Mongar, who died after being teen women who sought abortions at given an overdose of anesthesia and pain Planned Parenthood clinics in Wisconsin medication. Media reports also circulated subsequently received hospital treatment that Dr. Gosnell physically assaulted and for abortion-related complications.1 Sure- performed a forced abortion on a minor ly, no reasonable patient considering a and left fetal remains in a woman’s uterus, medical procedure known to result in com- causing her excruciating pain.

1. See Dkt. 198 ¶ 11. The record also reveals from AMS’s abortion clinic to a hospital to that, during that period, at least four patients treat serious complications from an abortion who received abortions at those clinics were procedure performed by one of AMS’s physi- transferred from the clinics to a hospital by cians. Id. ¶ 26. During that same time peri- ambulance for abortion-related complica- od, at least three AMS abortion patients suf- tions, and four women reported that they had fered complications serious enough that a post-abortion infections that resulted in treat- hysterectomy was required, resulting in those ment at a hospital. Id. ¶¶ 12–13. Additional- patients no longer being able to bear children. ly, between 2009 and 2014, at least eight AMS Id. ¶ 27. abortion patients were transferred directly 924 806 FEDERAL REPORTER, 3d SERIES

Dr. Gosnell was ultimately convicted of and does not constitute an undue burden murder for the deaths of three infants under Casey, I would join the Fifth Cir- delivered alive but subsequently killed at cuit’s merits decision in Planned Parent- his clinic. In light of the nationwide atten- hood of Greater Texas Surgical Health tion that Dr. Gosnell’s shop of horrors Services v. Abbott, 748 F.3d 583 (5th Cir. attracted, the Wisconsin State Assembly 2014), reh’g en banc denied, 769 F.3d 330 acted swiftly to pass Act 37, including the (5th Cir.2014) (Abbott II ), which upheld a admitting-privileges requirement at issue, functionally identical law on similar facts. in order to protect the health and safety of All of these facts lead me to the conclusion pregnant women who have chosen an abor- that the judgment of the district court tion. This lawsuit followed. should be reversed. For the reasons that Dr. Gosnell was able to run his opera- follow, I dissent. tion in a regulatory vacuum derived in no II small part from the view held by some that any regulation upon his practice was a A. Wisconsin has a Rational Basis to threat to the constitutional rights of his protect the health and safety of patients. Although we have recognized pregnant women seeking an abor- that doctors may bring suit on behalf of tion. their abortion patients, it does not auto- The Supreme Court’s surviving abortion matically follow that doctors and patients cases have repeatedly affirmed that the have identical interests. The constitution- state has a substantial interest in regulat- al right to privacy exists across the spec- ing abortion in furtherance of its interests trum of medical procedures, yet in no oth- in promoting the health and safety of preg- er area of medicine may a doctor bring a nant women. See, e.g., Gonzales v. Car- suit on behalf of a patient solely because hart, 550 U.S. 124, 158, 163, 127 S.Ct. 1610, the doctor finds a safety regulation cum- 167 L.Ed.2d 480 (2007); Stenberg v. Car- bersome. Where state regulation imposes hart, 530 U.S. 914, 931, 120 S.Ct. 2597, 147 on doctors measures designed to improve L.Ed.2d 743 (2000); Mazurek v. Arm- patient safety, doctor-patient interests strong, 520 U.S. 968, 973, 117 S.Ct. 1865, may diverge. Because that is precisely 138 L.Ed.2d 162 (1997) (per curiam); the case in this instance, we must look to Planned Parenthood of Se. Pa. v. Casey, the regulation’s effect on the prospective 505 U.S. 833, 846, 878, 112 S.Ct. 2791, 120 patient, not to the inconvenience the regu- L.Ed.2d 674 (1992) (plurality); Roe v. lation presents to the abortionist. Wade, 410 U.S. 113, 150, 163, 93 S.Ct. 705, Rather than shift the burden to the 35 L.Ed.2d 147 (1973). So have ours. state to provide reasons it was justified to See, e.g., Karlin v. Foust, 188 F.3d 446, enact the law at issue, we are obligated to 478 (7th Cir.1999); Planned Parenthood of uphold a law that regulates abortion where Wis. v. Doyle, 162 F.3d 463, 467 (7th Cir. there is a rational basis to act so long as 1998). the law does not have the effect of impos- Although the court purports to be con- ing an undue burden on a woman’s ability sistent with these cases, in reality, its deci- to make the decision to choose abortion. sion undermines the state’s interest recog- Here, the court sets this burden of proof nized within them. By doing so, the court exactly backwards. Because Wisconsin’s sets a dangerous precedent that jeopard- admitting-privileges requirement protects izes the ability of states to enact laws the health and safety of pregnant women designed to curb risks to the safety and PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 925 Cite as 806 F.3d 908 (7th Cir. 2015)

welfare of patients who choose to undergo providers to a state law that restricted the invasive medical procedures—including the provision of abortions only to licensed phy- women whom this admitting-privileges law sicians. Mazurek, 520 U.S. at 976, 117 protects. A brief reminder of the Su- S.Ct. 1865. By so ruling, the Court re- preme Court’s repeated emphasis on the called that its ‘‘cases reflect the fact that state’s interest in protecting the health the Constitution gives the States broad and safety of pregnant women who have latitude to decide that particular functions chosen abortion is apparently necessary. may be performed only by licensed profes- sionals.’’ Id. at 973, 117 S.Ct. 1865 (cita- B. The Supreme Court’s abortion de- tion omitted). cisions Shortly thereafter, in Stenberg, the In Roe, the Court recognized that a Court underscored Roe and Casey ’s com- state has a ‘‘legitimate interest in seeing to mitment to the health and safety of preg- it that abortion, like any other medical nant women by striking down a federal law procedure, is performed under circum- that made partial-birth abortion illegal be- stances that insure maximum safety for cause it failed to contain a ‘‘health excep- the patient.’’ Roe, 410 U.S. at 150, 93 tion TTT ‘for the preservation of the life or S.Ct. 705. The Court concluded that the health of the mother.’ ’’ Stenberg, 530 U.S. state’s legitimate interest in regulating at 938, 120 S.Ct. 2597 (citation omitted). abortion to protect maternal health ‘‘obvi- In laying the foundation for its decision, ously extends at least to [regulating] the the Court first recalled that it has ‘‘re- performing physician and his staff, to the peatedly invalidated statutes that in the facilities involved, to the availability of af- process of regulating the methods of abor- ter-care, and to adequate provision for any tion, imposed significant health risks.’’ Id. complication or emergency that may at 931, 120 S.Ct. 2597 (emphasis omitted). arise.’’ Id. Roe left no doubt that the state Channeling Casey, the Court then summa- ‘‘may regulate the abortion procedure to rized the state’s interest in the health of the extent that the regulation reasonably pregnant women as follows: ‘‘ ‘where it is relates to the preservation and protection necessary, in appropriate medical judg- of maternal health.’’ Id. at 163, 93 S.Ct. ment for the preservation of the life or 705. health of the mother,’ [ ] this Court has In Casey, the Court abandoned Roe’s made clear that a State may promote but rigid trimester framework. Casey, 505 not endanger a woman’s health when it U.S. at 872–76, 112 S.Ct. 2791. But not regulates the methods of abortion.’’ Id. before reiterating that ‘‘the State has legit- (citations omitted). imate interests from the outset of the Most recently, in Gonzales, the Court pregnancy in protecting the health of the consolidated these principles, acknowl- woman and the life of the fetus that may edging that ‘‘[w]here it has a rational basis become a child.’’ Id. at 846, 112 S.Ct. to act, and it does not impose an undue 2791. Further, the Court added that, ‘‘[a]s burden, the State may use its regulatory with any medical procedure, the State may power’’ to regulate abortion. Gonzales 550 enact regulations to further the health or U.S. at 158, 127 S.Ct. 1610. Gonzales held safety of a woman seeking an abortion.’’ that state and federal lawmakers have Id. at 878, 112 S.Ct. 2791. ‘‘wide discretion to pass legislation in areas Five years later, in Mazurek, the Court where there is medical and scientific un- rejected a challenge brought by abortion certainty.’’ Id. at 163, 127 S.Ct. 1610 (cita- 926 806 FEDERAL REPORTER, 3d SERIES

tions omitted). In short, over four dec- F.3d 406, 411 (5th Cir.2013) (Abbott I ) ades of Supreme Court decisions establish (‘‘The State offered more than a conceiva- that the state has a legitimate interest in ble state of facts that could provide a promoting the health and safety of preg- rational basis for requiring abortion physi- nant women seeking an abortion. cians to have hospital admission privi- leges.’’) (footnote and internal marks omit- C. The court splits with four federal ted); Greenville Women’s Clinic v. appellate circuits. Comm’r, S.C. Dep’t of Health & Envtl. Mindful of the health and safety inter- Control, 317 F.3d 357, 363 (4th Cir.2002) ests recognized in these decisions, Wiscon- (‘‘These requirements of having admitting sin and eleven other states have passed privileges at local hospitals and referral admitting-privilege laws. Planned Par- arrangements with local experts are so enthood of Wis. v. Van Hollen, 738 F.3d obviously beneficial to patients.’’) (citations 786, 791 (7th Cir.2013). Lawsuits initiated omitted); Women’s Health Ctr. of W. Cty., by abortion providers followed, and multi- Inc. v. Webster, 871 F.2d 1377, 1381 (8th ple circuits have ruled on their constitu- Cir.1989) (‘‘We have no difficulty in con- tionality. The rationales deployed in these cluding that [the admitting-privileges law] decisions have varied, but two facts are rationally relates to the state’s legitimate common throughout. First, every circuit interest in ensuring that prompt backup to rule on similar admitting-privileges laws care is available to patients who undergo like the one at issue here has uniformly abortions in outpatient clinics.’’). upheld them. Second, no circuit except The rational basis standard is no strang- ours has ventured anywhere close to er to the judiciary. Federal courts across adopting the extreme position taken by the the nation apply it regularly when consti- court that a state’s admitting-privileges tutional challenges are brought against law lacks a rational basis. See Whole state action. Familiar as it may be, the Women’s Health v. Cole, 790 F.3d 563, 584 district court failed to apply it, proceeding (5th Cir.2015) (plaintiffs challenging Tex- instead as though the state bore the bur- as’s admitting-privileges law concede it is den of proving that its admitting-privileges supported by a rational basis); Jackson law was reasonably related to the health Women’s Health Org. v. Currier, 760 F.3d and safety of women seeking abortions. 448, 454 (5th Cir.2014) (‘‘H.B. 1390 satis- Van Hollen, 94 F.Supp.3d at 964 (‘‘Since fies rational basis review based upon our the State contends that the admitting priv- binding precedent in Abbott.’’); Planned Parenthood of Ariz., Inc. v. Humble, 753 ileges requirement at issue is reasonably F.3d 905, 914 (9th Cir.2014) (‘‘We assume directed to the health of women seeking without deciding that the Arizona law abortions, it has the burden of demonstrat- passes rational-basis review.’’); Abbott II, ing this link.’’) (citations omitted). 748 F.3d at 595 (‘‘Applying the rational That’s exactly backwards. Under ra- basis test correctly, we have to conclude tional basis review, courts must presume that the State acted within its prerogative that the law in question is valid and up- to regulate the medical profession by heed- hold it so long as the law is rationally ing these patient-centered concerns and related to a legitimate state interest. City requiring abortion practitioners to obtain of Cleburne v. Cleburne Living Ctr., 473 admitting privileges at a nearby hospi- U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d tal.’’); Planned Parenthood of Greater 313 (1985). Since the Supreme Court has Tex. Surgical Health Servs. v. Abbott, 734 repeatedly recognized the state’s long- PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 927 Cite as 806 F.3d 908 (7th Cir. 2015) standing interest in protecting the health demonstrated above, the answer to that and safety of pregnant women who have question is yes. So the next question to chosen abortion, at this juncture, ‘‘we ask is whether the state’s means of pro- must presume that the admitting-privi- moting its regulation (admitting privileges) leges requirement is constitutional, and are reasonably related to the legitimate uphold it so long as the requirement is interest already established (patient safe- rationally related to Wisconsin’s legitimate ty). If that answer is also yes, then the interests.’’ Van Hollen, 738 F.3d at 800 regulation satisfies rational basis review, (Manion, J., concurring in part and in the and we must uphold it. That the contro- judgment) (citations omitted). The party versy implicates abortion does not alter challenging an abortion restriction bears the analysis because ‘‘[n]othing in the Su- the burden of proving the government’s preme Court’s abortion jurisprudence de- action irrational. See Mazurek, 520 U.S. viates from the essential attributes of the at 971, 117 S.Ct. 1865 (citing Casey, 505 rational basis test, which affirms a vital U.S. at 884, 112 S.Ct. 2791). To prove a principle of democratic self-government.’’ legislative act irrational, ‘‘the burden is on Abbott II, 748 F.3d at 594.2 the one attacking the legislative arrange- ment to negate every conceivable basis D. Admitting privileges further Wis- which might support it.’’ Heller v. Doe, consin’s legitimate state interest 509 U.S. 312, 320, 113 S.Ct. 2637, 125 in patient safety. L.Ed.2d 257 (1993) (citation omitted). Admitting privileges are, in the words of This is a tall order because ‘‘the govern- the Fourth Circuit, ‘‘obviously beneficial.’’ ment may defend the rationality of its Greenville Women’s Clinic, 317 F.3d at action on any ground it can muster.’’ 363 (citation omitted). So beneficial, in RJB Props., Inc. v. Bd. of Educ. of Chic., fact, that the National Abortion Federa- 468 F.3d 1005, 1010 (7th Cir.2006) (citation tion recommended them until only recent- and internal marks omitted). ly. At trial, Wisconsin’s expert, Dr. James Thus, the inquiry for courts under ra- Anderson, Clinical Professor in the De- tional basis review starts with this ques- partment of Family Practice & Population tion: is there ‘‘any reasonably conceivable Health at Virginia Commonwealth Univer- state of facts that could provide a rational sity School of Medicine, referenced a publi- basis’’ for the state regulation? See F.C.C. cation from the National Abortion Federa- v. Beach Commc’ns, Inc., 508 U.S. 307, tion entitled Having an Abortion? Your 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 Guide to Good Care (2000), which states (1993); Abbott I, 734 F.3d at 411. As that ‘‘[i]n the case of emergency, the doc-

2. In its efforts to wrest this case from the view). For the plaintiffs to prevail, they must ambit of rational basis review, the court as- prove that post-abortion complications never signs great weight to numerous studies and occur in Wisconsin, or that admitting privi- reports which contend that complications leges have no impact on safety. See Heller, rarely occur after abortions and that those 509 U.S. at 321, 113 S.Ct. 2637 (‘‘[T]he bur- which do occur are not more frequent than den is on the one attacking the legislative other types of outpatient surgeries. But this arrangement to negate every conceivable ba- is immaterial because courts do not weigh sis which might support it.’’) (citation and evidence when they apply rational basis re- internal marks omitted). However, that is view. See Nat’l Paint & Coatings Ass’n v. City not possible on this record, because the plain- of Chic., 45 F.3d 1124, 1127 (7th Cir.1995) tiffs’ own expert and the court-appointed ex- (recalling that there is ‘‘never a role for evi- pert testified that admitting privileges are dentiary proceedings’’ under rational basis re- beneficial because they make abortion safer. 928 806 FEDERAL REPORTER, 3d SERIES

tor should be able to admit patients to a members of their guild to become ineligi- nearby hospital (no more than 20 minutes ble to perform abortions. away).’’ Dkt. 244 at 237–40; Dkt. 126 Abbott II also supports this conclusion. ¶¶ 6–7. There, the court observed that ‘‘[t]here are Indeed, the medical community has long four main benefits supporting the require- been of the opinion that admitting privi- ment that operating surgeons hold local leges provide a real benefit to the health hospital admitting and staff privileges: (a) and safety of pregnant women seeking an it provides a more thorough evaluation abortion. In 2003, the American College mechanism of physician competency which of Surgeons issued a statement on patient- better protects patient safety; (b) it ac- safety principles that was joined by the knowledges and enables the importance of American Medical Association and the continuity of care; (c) it enhances inter- American College of Obstetricians and Gy- physician communication and optimizes pa- necologists. They listed several ‘‘core tient information transfer and complication principles,’’ the fourth of which provided management; and (d) it supports the ethi- that: ‘‘[p]hysicians performing office-based cal duty of care for the operating physician surgery must have admitting privileges at to prevent patient abandonment.’’ Abbott a nearby hospital, a transfer agreement II, 748 F.3d at 592. Here, the parties with another physician who has admitting have consolidated these four categories of privileges at a nearby hospital, or maintain benefits into three. The trial record con- an emergency transfer agreement with a tains evidence that admitting privileges nearby hospital.’’ 3 are rationally related to a legitimate state Perplexingly, in this case, the AMA and interest because they promote the health ACOG have filed a joint amicus brief argu- and safety of pregnant women seeking ing that Wisconsin’s admitting-privileges abortions in Wisconsin.4 Therefore, at the law is unconstitutional. Yet their brief first step of the Gonzales test, this re- makes no mention of their 2003 statement quirement is subject to rational basis re- or their sudden, yet convenient, disavowal view. I address each benefit in turn. of one of their ‘‘core principles’’ related to patient safety. It appears from the trial i. Continuity of care testimony that plaintiff-doctors have sim- Continuity of care is beneficial to abor- ply decided that admitting privileges are tion patients because it reduces the ‘‘risk only desirable insofar as they do not cause of injury caused by miscommunication and

3. See American College of Surgeons, State- cluded that the immediate effective date after ment on Patient Safety Principles for Office- signing was clearly intended to close the clin- based Surgery Utilizing Moderate Sedation/An- ics. But the legislative purpose was not to algesia, Deep Sedation/Analgesia, or General immediately close the clinics. The legislature Anesthesia, Bulletin of the American College approved the statutes several weeks before of Surgeons, Vol. 89, No. 4 (Apr.2004), avail- the governor signed the legislation. There is able at http://www.facs.org/fellows info/ no evidence that their apparent failure to des- statements/st–46.html (last visited Nov. 12, ignate a specific effective date was anything 2015). other than a simple oversight. The prelimi- nary injunction, with which I concurred, 4. The district court presupposed that the lack quickly cured that problem. Significantly, of required admitting privileges for other, the preliminary injunction and the delay in more dangerous medical procedures showed connection with the trial enabled all of that the only purpose of Wisconsin’s law was Planned Parenthood’s abortion doctors to ac- to restrict safe, legal abortions. It also con- quire admitting privileges. PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 929 Cite as 806 F.3d 908 (7th Cir. 2015) misdiagnosis when a patient is transferred care. Id. at 233 (Dr. Anderson); Dkt. 131 from one health care provider to another.’’ ¶ 22 & Dkt. 164 ¶ 15 (Dr. Thorp). Abbott II, 748 F.3d at 595. Indeed, even The opinions of these medical profes- plaintiff and expert witness Dr. Kathy sionals are shared, too, by the Fifth Cir- King of Planned Parenthood agreed that cuit, which concluded that ‘‘[r]equiring continuity of care is a necessary ingredient abortion providers to have admitting privi- when treating patients. Dkt. 243 at 155. leges would also promote the continuity of care in all cases, reducing the risk of inju- Dr. King’s opinion was shared by the ry caused by miscommunication and misdi- court-appointed expert, Dr. Serdar Bulun, agnosis when a patient is transferred from Chair of the Department of Obstetrics and one health care provider to another.’’ Ab- Gynecology at Northwestern University’s bott II, 748 F.3d at 595. Feinberg School of Medicine, who also opined that ‘‘physician to physician com- ii. Credentialing munication is one of the most important Similarly, the ‘‘credentialing process en- requirements for optimal handling of a tailed in the regulation reduces the risk complication arising from a procedure,’’ that abortion patients will be subjected to and that ‘‘communication should ideally woefully inadequate treatment.’’ Id. In take place between the physician perform- other words, credentialing advances the ing the abortion and the physician at the state’s interest in promoting patient health hospital, who will be handling the compli- by helping ensure that doctors performing cation.’’ 7th Cir. Dkt. 44 at 4.5 Dr. Bulun abortions are qualified. Dr. Geoffrey R. testified further that admitting privileges Keyes, president of the American Associa- would have benefits ‘‘probably 90% of the tion for Accreditation of Ambulatory Sur- time,’’ Dkt. 244 at 60, and that while trans- gery Facilities, opined that ‘‘credentialing fer agreements were important, ‘‘in an ide- and privileging serve important and neces- al world both [admitting privileges and sary functions in contemporary medical transfer agreements] should exist.’’ Id. at practice, primarily to ensure that patients 61. receive safe high quality care from provid- Likewise, Wisconsin’s experts, including ers with appropriate skill, training and Dr. Anderson and Dr. John Thorp (a experience.’’ Dkt. 127 ¶ 15. board-certified ob-gyn who teaches at the In addition to the testimony of Dr. University of North Carolina’s School of Anderson, Dkt. 244 at 232–33, Dr. Bulun Public Health), opined that admitting priv- opined that a benefit of physicians having ileges aided in promoting continuity of admitting privileges is ‘‘to ensure that the

5. In its standing analysis, the court correctly wait in line before being treated, or undergo recognizes that a woman who has had or is preliminary examinations to determine the expecting to have an abortion does not want nature and source of the problem. If admit- her name exposed as a plaintiff in a lawsuit ting privileges were in place, by contrast, the challenging the constitutionality of the law woman’s operating physician could bypass regulating abortion practices. The same pri- any embarrassing delay and promptly secure vacy concerns would be encountered if a the woman’s admission and treatment upon woman suffering from an abortion-related in- arrival. In this way, the physician-to-physi- jury had to go to the nearest emergency room. cian communication facilitated by the admit- There she would have to give her name and ting-privileges requirement would help pro- disclose the cause of her injury (or else lie tect the woman’s privacy and promote more about it, suggesting that it must have been a efficient remedial treatment. natural miscarriage). She may also have to 930 806 FEDERAL REPORTER, 3d SERIES practicing physicians are appropriately State Assembly had a ‘‘rational basis to qualified, trained and competent to prac- act’’ in passing this admitting-privileges tice in a specific area of medicine or sur- law in order to protect the health and gery.’’ 7th Cir. Dkt. 44 at 3. The Fifth safety of pregnant women who choose Circuit agreed, stating that the ‘‘require- abortion in Wisconsin. See Gonzales, 550 ment that physicians performing abortions U.S. at 158, 127 S.Ct. 1610. Given that must have hospital admitting privileges ‘‘[r]egulations designed to foster the health helps to ensure that credentialing of physi- of a woman seeking an abortion are valid if cians beyond initial licensing and periodic they do not constitute an undue burden,’’ license renewal occurs.’’ Abbott I, 734 Casey, 505 U.S. at 877–78, 112 S.Ct. 2791, F.3d at 411. the next question is whether this law has the effect of imposing an undue burden on iii. Accountability and peer review the ability of women to choose abortion. Finally, in addition to Wisconsin’s ex- perts and Dr. Bulun, plaintiffs’ own expert The Casey plurality first described the witness, Dr. Douglas W. Laube, a Profes- ‘‘undue burden’’ test as follows: ‘‘A finding sor of Obstetrics and Gynecology at the of an undue burden is a shorthand for the University of Wisconsin Medical School, conclusion that a state regulation has the and past president of the American Col- purpose or effect of placing a substantial lege of Obstetricians and Gynecologists, obstacle in the path of a woman seeking an testified that accountability and peer re- abortion of a nonviable fetus.’’ Id. at 877, view was a benefit to women’s health pro- 112 S.Ct. 2791. We said that, in applica- moted by Wisconsin’s admitting-privileges tion, ‘‘a court’s proper focus must be on 6 requirement. Dkt. 244 at 65–66. the practical impact of the challenged reg- ulation and whether it will have the likely III effect of preventing a significant number A. Wisconsin’s admitting-privileges of women for whom the regulation is rele- requirement does not impose an vant from obtaining abortions.’’ Karlin, Undue Burden on a woman’s abil- 188 F.3d at 481. The Supreme Court then ity to choose abortion. simplified Casey ’s description of an undue The record evidence I have cited estab- burden by collapsing the purpose inquiry lishes beyond a doubt that the Wisconsin into the effects test. See Gonzales, 550

6. While the only issue on appeal is the man- ment of the gestational stage of the pregnan- date for admitting privileges, another very cy. The detection of twins might also give the important purpose of Wisconsin’s law was the woman second thoughts. But regardless of requirement for ultrasounds. As I pointed whether certain legislators hoped that an ul- out in my earlier concurrence, receiving an trasound would cause the woman to change ultrasound before an abortion benefits women her mind, the ultrasound indisputably pro- in several ways. For starters, the ultrasound vides important information facilitating a would confirm the fact that she was pregnant. more fully informed decision, which cannot Once she saw or heard the heartbeat, she be seen as anything but a benefit to the wom- would be assured that there is not a mistaken an (even if the abortionist might disapprove of pregnancy test or a spontaneous miscarriage her decision). The obvious benefits flowing that was not earlier detected. Thus she from the ultrasound requirement show that would avoid paying several hundred dollars Wisconsin’s law is supported by a number of for an unnecessary operation. Also, the ultra- rational bases—all centered on the health and sound would help reduce medical uncertainty welfare of the woman—in addition to those and disclose any potential complications, advanced by the requirement for admitting such as by enabling a more accurate assess- privileges. PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 931 Cite as 806 F.3d 908 (7th Cir. 2015)

U.S. at 158, 127 S.Ct. 1610; Currier, 760 1. Effect of AMS’s potential closure F.3d at 460 n. 4 (Garza, J., dissenting). on the Undue Burden analysis That is the second step of our analysis. In Wisconsin, Planned Parenthood oper- As an intermediate appellate court, we ates abortion clinics in Milwaukee, Madi- are bound to apply standards established son, and Appleton. Its abortion providers by the Supreme Court. When this case at each of those clinics have secured admit- was first before us, however, the court ting privileges. Affiliated Medical Ser- majority shifted the burden to the state to vices (AMS) operates one abortion clinic in justify the medical necessity of its admit- Milwaukee. Drs. Dennis Christensen and ting-privileges law and characterized the Bernard Smith staff AMS and are, at pres- undue burden standard for the district ent, the only abortion providers in Wiscon- court to apply on remand as follows: sin to conduct abortions after 18.6 weeks The cases that deal with abortion-relat- LMP (commonly known as ‘‘late-term ed statutes sought to be justified on abortions’’). Neither has secured admit- medical grounds require not only evi- ting privileges. Consequently, the plain- dence (here lacking as we have seen) tiffs contend that AMS risks closure, and that the medical grounds are legitimate that, if that occurs, women seeking abor- but also that the statute not impose an tions in Wisconsin will face three undue ‘‘undue burden’’ on women seeking abor- burdens: (1) significantly increased wait tions. The feebler the medical grounds, times; (2) required travel to Chicago or the likelier the burden, even if slight, to other locations; and (3) no inpatient option be ‘‘undue’’ in the sense of dispropor- for women seeking late-term abortions in tionate or gratuitous. Wisconsin. I address these arguments in Van Hollen, 738 F.3d at 798 (citations turn. omitted). Although I concurred in that judgment affirming the preliminary injunc- a. Wait times tion because the law provided no grace Dr. King of Planned Parenthood testi- period for abortion doctors to acquire ad- fied that, if AMS were to close, it would mitting privileges before the law requiring ‘‘overwhelm the capacity of the Planned them took effect, I did not then—nor do I Parenthood of Wisconsin clinics to accom- today—endorse the home-brewed ‘‘undue modate’’ the 2,500 women who incurred burden’’ standard that the court now dou- abortions at AMS in 2013. Dkt. 243 at bles-down on. Simply stated, it finds no 147–48. In crediting this testimony, the basis in Gonzales, Casey, or any other case district court erroneously characterized law other than that which it created. See the undue burden standard as requiring Whole Women’s Health v. Lakey, 769 F.3d ‘‘access to abortion services in Wisconsin.’’ 285, 297 (5th Cir.2014) (‘‘Under our prece- Van Hollen, 94 F.Supp.3d at 989. The dent, we have no authority by which to Supreme Court’s abortion jurisprudence turn rational basis into strict scrutiny un- carries no intrastate guarantee. der the guise of the undue burden inqui- ry.’’). By reversing the burdens of proof, ‘‘Although all pre-viability regulations the court also implicitly rejects Mazurek, burden a woman’s ability to obtain an 520 U.S. at 971, 117 S.Ct. 1865, which abortion to some degree, the Court [in requires that the party challenging an Casey ] explained that an abortion law is abortion restriction bear the burden of not rendered unconstitutional merely be- proof. See Abbott II, 748 F.3d at 597. cause it operates to make it more difficult 932 806 FEDERAL REPORTER, 3d SERIES

or more expensive to procure an abortion.’’ other clinics within a reasonable distance Karlin, 188 F.3d at 479 (citing Casey, 505 remain open for business. See, e.g., Abbott U.S. at 874, 112 S.Ct. 2791). Casey reject- II, 748 F.3d at 598 (clinic closure was not ed the notion that the abortion right is the undue burden when another clinic was ac- right ‘‘to decide whether to have an abor- cessible within 150 miles); Women’s Med. tion without interference from the State.’’ Prof. Corp. v. Baird, 438 F.3d 595, 605 (6th Casey, 505 U.S. at 875, 112 S.Ct. 2791 Cir.2006) (same within 45 to 55 miles); (quoting Planned Parenthood of Cent. Mo. Greenville Women’s Clinic v. Bryant, 222 v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831, F.3d 157, 165 (4th Cir.2000) (same within 49 L.Ed.2d 788 (1976)) (internal marks 70 miles). omitted). Rather, the abortion right rec- AMS is one of four abortion clinics in ognized by Roe is the ‘‘right to be free Wisconsin and two in Milwaukee. Even if from unwarranted governmental intrusion’’ it closed, patrons seeking pre–18.6 week in making the abortion decision. Id. (cita- LMP abortions (approximately 98% of tion and internal marks omitted). Ulti- women seeking abortions in Wisconsin) mately, Casey summarizes the undue bur- would need to travel a mere 1.3 miles (four den standard as follows: minutes by automobile) to reach Planned Only where state regulation imposes an Parenthood’s Milwaukee clinic instead.7 undue burden on a woman’s ability to The plaintiffs argue that the state cre- make this decision does the power of the ates an undue burden under Casey when a State reach into the heart of the liberty regulation designed to protect the health protected by the Due Process Clause. and safety of pregnant women decreases Id. 505 U.S. at 874, 112 S.Ct. 2791 (cita- the availability of qualified abortionists. tions omitted). The implications of this argument are as- The Supreme Court has held that the tounding. Taken to its logical end, this constitutional right to privacy extends to a argument would require the state to as- woman’s right to choose abortion; it has sume some affirmative duty both to pro- not held, or even implied, that this right is vide abortion services and to do so in a intrastate in nature. To be sure, there is manner that is convenient for consumers no constitutional right to obtain an abor- of abortion and with no regard for the tion at the clinic of one’s choice and at the quality of healthcare professionals that a time of one’s convenience, just as one’s state’s naturally occurring marketplace right to free speech does not apply in all provides. The state bears no such obli- places a protester might desire to com- gation or duty. Karlin, 188 F.3d at 479 plain. In the same way that a state may (‘‘Although all pre-viability regulations reasonably regulate speech if it leaves burden a woman’s ability to obtain an open adequate alternative forums for ex- abortion to some degree, the Court ex- pression, increased wait times at one clinic plained [in Casey ] that an abortion law is do not constitute an undue burden when not rendered unconstitutional merely be-

7. Statistics indicate that approximately 98% abortions after 18.6 weeks LMP, but before 20 of women seeking abortions in Milwaukee weeks LMP, the post–20 week number ac- will not be impacted if AMS closes. In 2012, counts for less than 2% of all abortions in there were 6,927 abortions reported in Wis- Wisconsin. Women seeking the latest term consin. Dkt. 200 ¶ 9. That same year, AMS abortions permitted by law have access to performed 131 post–20 week LMP abortions. other clinics in Chicago that are well within a Dkt. 243 at 29–30. Although these statistics distance held not to be an undue burden, as I do not account for the women who incurred discuss below. PLANNED PARENTHOOD OF WISCONSIN, INC. v. SCHIMEL 933 Cite as 806 F.3d 908 (7th Cir. 2015) cause it operates to make it more difficult boundaries. State inaction is not state or more expensive to procure an abor- action. tion.’’) (citation omitted). In short, there is simply no basis for us While the Supreme Court has limited a to disrupt the market for abortionists by state’s ability to regulate abortions, it has interjecting ourselves: their abilities to never required a state to establish a com- qualify for admitting privileges, like ‘‘[t]he mand economy in order to provide them. independent decisions of private hospi- That the market may disfavor abortionists tals[,] have no place in our review of state is not the state’s concern, but the preroga- action under the Constitution.’’ Currier, tive of the purveyors of that service. Like 760 F.3d at 460 (Garza, J., dissenting) any enterprise that wishes to be a going (citation and footnote omitted). concern, entities that wish to sell abortions must hire practitioners who are able to b. Required travel and availability of secure the necessary credentials on the late-term abortions basis of their professional reputations and their documented provision of skilled care.8 Consumers who live near the border of In this instance, these credentials include two states tend to shop at the closest admitting privileges. destination, regardless of whether they re- The solution to the plaintiffs’ problems side in that state. Disregarding this rou- is that they find more qualified doctors, tine assumption, plaintiffs argue that re- not that the state relax—or that we strike quiring women seeking abortion to travel down as unconstitutional—precautions tak- outside the state to obtain late-term abor- en by the state to protect the health and tions creates an undue burden. Surpris- safety of pregnant women who have cho- ingly, this argument finds some basis in sen to abort their pregnancies. See Casey, the Fifth Circuit’s recent decision in Jack- 505 U.S. at 875, 112 S.Ct. 2791 (rejecting son Women’s Health Organization v. Cur- the notion that the abortion right is the rier, 760 F.3d 448, 457 (5th Cir.2014), right ‘‘to decide whether to have an abor- where the court held that ‘‘the proper for- tion without interference from the State’’). mulation of the undue burden analysis fo- Lest there be any doubt, Wisconsin labors cuses solely on the effects within the regu- under no compulsory receivership that ob- lating state.’’ However, our precedent ligates it to intervene if the market fails to squarely disagrees with Jackson: ‘‘the un- provide qualified abortionists within its due-burden standard must be applied TTT

8. The court refers to a few hospitals that from an abortion.’’ However, to their credit, require doctors to have treated a certain num- the Planned Parenthood doctors at the other ber of patients there in order to obtain admit- three abortion clinics in Wisconsin have ap- ting privileges. Other hospitals might give parently demonstrated sufficient competence admitting privileges to doctors who demon- in medical procedures, perhaps even deliver- strate competence in the particular procedure ing live babies, to qualify for and to obtain the that the doctor seeks to perform. Of course, statutorily required admitting privileges. For a hospital that requires delivering 100 live women considering abortion, that credential babies in the previous two years would not that distinguishes them from AMS is worth give the AMS doctors admitting privileges be- noting. Although the court implies otherwise, cause, as the court observes, ‘‘delivering live it is safe to say that the Planned Parenthood babies is not what abortion doctors do.’’ And doctors will not depend on the ‘‘rare’’ abor- as the court also noted when discussing the tion complication to obtain a sufficient vol- very low death rate for women who undergo abortions, the study cited measured long-term ume of hospital work to maintain their admit- mortality rates ‘‘rather than death resulting ting privileges. 934 806 FEDERAL REPORTER, 3d SERIES

to the nation as a whole, rather than one of the plaintiffs’ applications for admitting state at a time.’’ A Woman’s Choice–E. privileges at Wisconsin hospitals. Counsel Side Women’s Clinic v. Newman, 305 F.3d was unable to confirm whether any doctors 684, 688 (7th Cir.2002). servicing the four abortion clinics in Wis- Turning towards distance rather than consin possessed admitting privileges, nor towards the governor’s mansion, Chicago did she know the status of any pending 9 is approximately 93 miles from Milwau- applications by her clients to obtain them. kee—or a one hour and forty minute drive. The Fifth Circuit recently held that Tex- i. Planned Parenthood’s efforts to ob- as’s admitting-privileges law did not im- tain admitting privileges pose an undue burden on a woman’s right We know more now. At least six to choose abortion because ‘‘travel of less Planned Parenthood abortion doctors—Dr. than 150 miles for some women is not an Susan Pfleger, Dr. Kathy King, and pseud- undue burden under Casey.’’ Abbott II, onymous plaintiffs P1, P2, P3, and P5—all 748 F.3d at 598 (citation omitted). Before of whom did not have admitting privileges Abbott II, the Sixth Circuit similarly con- when this lawsuit was filed, have subse- cluded that there was no undue burden quently obtained them. See Van Hollen, under Casey where one of two Ohio clinics 94 F.Supp.3d at 988–89. These individuals to conduct 18–24 week abortions was put forth sufficient efforts to obtain admit- closed due to lack of a transfer agreement ting privileges and were successful, prov- with a local hospital, even when the re- ing that obtaining admitting privileges is maining clinic was located over 200 miles not an insurmountable obstacle, even for away. See Baird, 438 F.3d at 599, 605. abortion doctors. Consistent with these authorities, it is well within the scope of Newman to conclude ii. AMS’s efforts to obtain admitting that the 93–mile trip from Milwaukee to privileges Chicago to obtain an abortion does not The same cannot be said of Drs. Chris- impose an undue burden on a woman’s tensen and Smith. Milwaukee has over ability to choose abortion. 305 F.3d at two dozen hospitals,10 yet Dr. Smith only 688. attempted to apply for admitting privileges at one hospital (and had the AMS manager 2. Even if the undue burden standard send an inquiry email to another). Dr. applied to the market availability Christensen (who had admitting privileges of abortion doctors, the AMS abor- for decades before entering semi-retire- tionists made minimal efforts to ment) attempted to apply for admitting obtain admitting privileges. privileges at two hospitals, but did not When this case was before us on the attempt to satisfy their informational re- preliminary injunction, I asked plaintiffs’ quests. In the words of the district court, counsel at oral argument about the status these ‘‘efforts’’ demonstrate that both doc-

9. Of course, I recognize that, at the prelimi- may have been less likely to affirm the injunc- nary injunction stage, it was in counsel’s tion entered by the district court. clients’ best interests for her to be non-re- sponsive to my question because if she had 10. See Discover Milwaukee–Metro Milwaukee informed us that some of her clients already Hospitals, http://www.discovermilwaukee. possessed admitting privileges, some of the com/healthcare-and-fitness/metro-milwaukee- clinics would likely have remained open even hospitals/ (last visited Nov. 12, 2015). in light of the law’s immediate effect, and we HEALTH & WELFARE TRUST FUND v. CON–TECH CARPENTRY 935 Cite as 806 F.3d 935 (7th Cir. 2015) tors ‘‘fail[ed] to exhaust all opportunities’’ of pregnant women who have decided to to obtain admitting privileges. Id. at 987. incur an abortion, and because it does not I agree with that assessment. Moreover, impose an undue burden under Casey, I while both doctors were savvy enough to dissent. obtain counsel for the purpose of initiating this lawsuit, neither did so to assist in their acquisition of the admitting privileges this lawsuit seeks to invalidate. Dkt. 211 at 48 (Dr. Smith); Dkt. 226 at 45 (Dr. Christensen). Despite plaintiffs’ argu- , ments to the contrary, indifference to- wards the law by abortion providers that results in an abortion clinic’s potential clo- sure does not create an undue burden.

IV CENTRAL ILLINOIS CARPENTERS HEALTH AND WELFARE TRUST I regret that today’s decision marks the FUND, et al., Plaintiffs–Appellees, latest chapter in our circuit’s continued misapplication of the Supreme Court’s v. abortion jurisprudence. By a majority of one, the court has eliminated a measure CON–TECH CARPENTRY, LLC, that Wisconsin’s elected officials have en- Defendant–Appellant. acted to protect the health and safety of No. 15–1269. women who choose to incur an abortion. There is no question that Wisconsin’s ad- United States Court of Appeals, mitting-privileges requirement furthers Seventh Circuit. the legitimate, rational basis of protecting women’s health and welfare. Among oth- Argued Nov. 6, 2015. er benefits, the requirement promotes Decided Nov. 24, 2015. continuity of care and helps to ensure that abortionists are properly credentialed Background: Multi-employer health and and qualified. It also works in tandem welfare funds filed action against employer with Wisconsin’s ultrasound requirement under Employee Retirement Income Secu- to facilitate informed decision-making on rity Act (ERISA) seeking delinquent con- the parts of doctor and patient alike. tributions. After entry of default judg- Nor is there any indication that the re- ment, the United States District Court for quirement would pose a substantial obsta- the Central District of Illinois, Colin S. cle to women’s ability to access abortion Bruce, J., denied employer’s motion for providers in their area. As Planned Par- relief from judgment, and employer ap- enthood’s successful applications for ad- pealed. mitting privileges demonstrate, the hospi- Holding: The Court of Appeals, Easter- tals of Wisconsin are perfectly willing to brook, Circuit Judge, held that district grant admitting privileges to qualified court did not abuse its discretion in deny- physicians who perform abortions in their ing employer’s motion from relief from state. Because Wisconsin’s admitting- default judgment. privileges requirement has the rational basis of promoting the health and safety Affirmed.