Planned Parenthood of Wiscons v. Brad D. Schimel

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1736

PLANNED PARENTHOOD OF WISCONSIN, INC., et al.,

Plaintiffs-Appellees,

v.

BRAD D. SCHIMEL, Attorney General of Wisconsin, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:13-cv-00465-wmc — William M. Conley, Chief Judge.

____________________

ARGUED OCTOBER 1, 2015 — DECIDED NOVEMBER 23, 2015

____________________

Before POSNER, MANION, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. On July 5, 2013, the Governor of

Wisconsin signed into law a statute that the Wisconsin legis-

lature had passed the previous month. So far as relates to

this appeal the statute prohibits a doctor, under threat of

heavy penalties if he defies the prohibition, from performing

an abortion (and in Wisconsin only doctors are allowed to

perform abortions, Wis. Stat. § 940.15(5)) unless he has ad-

2 No. 15-1736

mitting privileges at a hospital no more than 30 miles from

the clinic in which the abortion is performed. Wis. Stat.

§ 253.095(2).

A doctor granted admitting privileges by a hospital be-

comes a member of the hospital’s staff and is authorized to

admit patients to that hospital and to treat them there; that is

the meaning of “admitting privileges.” Of course any doctor

(in fact any person) can bring a patient to an emergency

room to be treated by the doctors employed there. A hospital

that has an emergency room is obliged to admit and to treat

a patient requiring emergency care even if the patient is un-

insured. 42 U.S.C. § 1395dd(b)(1). Moreover, all Wisconsin

abortion clinics are required by law (see Wis. Admin. Code

Med. § 11.04(1)(g)) to have transfer agreements with local

hospitals to streamline the process of transferring the patient

from the abortion clinic to a nearby hospital, which could be

important if the patient would be better served elsewhere in

a hospital than the emergency room—though in that event

the emergency room doctors would send her to the part of

the hospital in which she could best be served.

Planned Parenthood of Wisconsin and Milwaukee Wom-

en’s Medical Services (also known as Affiliated Medical Ser-

vices, commonly referred to as AMS)—which operate the

only four abortion clinics in Wisconsin—joined by two doc-

tors employed by Planned Parenthood, filed suit on the day

the governor signed the statute into law. The plaintiffs chal-

lenged the statute’s constitutionality under 42 U.S.C. § 1983,

which provides a tort remedy for violations of federal law by

state officials or other state employees. The plaintiffs sought

and obtained first a temporary restraining order and then a

preliminary injunction against enforcement of the statute

No. 15-1736 3

(not the entire statute, just the provision regarding admitting

privileges for abortion doctors—but for simplicity we’ll gen-

erally call that provision “the statute”).

The defendants (the Wisconsin attorney general, Wiscon-

sin district attorneys, the Wisconsin Secretary of the De-

partment of Safety and Professional Services, and members

of the state’s Medical Examining Board) appealed from the

grant of the preliminary injunction. 28 U.S.C. § 1292(a)(1).

We affirmed the grant in Planned Parenthood of Wisconsin, Inc.

v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). That cleared the

way for the district judge to conduct a full trial, which he

did. The trial culminated in his granting a permanent injunc-

tion against enforcement of the statute, which was the relief

sought by the plaintiffs. The defendants (essentially, the

state) have again appealed, arguing that the statute protects

the health of women who experience complications from an

abortion. The plaintiffs disagree, arguing that if allowed to

go into effect the statute would not protect the health of

women but would simply make it more difficult for them to

obtain abortions, period, in violation of constitutional rights

recognized by the U.S. Supreme Court.

There might appear to be a question about standing to

sue, since the principal victims of the statute are women de-

siring abortions and none of them is a plaintiff. But we ex-

plained in our opinion upholding the preliminary injunction

that the plaintiffs have standing. The cases are legion that

allow an abortion provider, such as Planned Parenthood of

Wisconsin or AMS, to sue to enjoin as violations of federal

law (hence litigable under 42 U.S.C. § 1983) state laws that

restrict abortion. These cases emphasize not the harm to the

abortion clinic of making abortions very difficult to obtain

4 No. 15-1736

legally, though that might be an alternative ground for rec-

ognizing a clinic’s standing, but rather “the confidential na-

ture of the physician-patient relationship and the difficulty

for patients of directly vindicating their rights without com-

promising their privacy,” as a result of which “the Supreme

Court has entertained both broad facial challenges and pre-

enforcement as-applied challenges to abortion laws brought

by physicians on behalf of their patients.” Isaacson v. Horne,

716 F.3d 1213, 1221 (9th Cir. 2013); see also Richard H. Fal-

lon, Jr., “As-Applied and Facial Challenges and Third-Party

Standing,” 113 Harv. L. Rev. 1321, 1359–61 (2000).

A related consideration, important in this case as we’ll

see, is the heterogeneity of the class that is likely to be affect-

ed by the Wisconsin statute. If one of the abortion clinics in

the state closes, placing increased demand on the others,

some women wanting an abortion will experience delay in

obtaining, or may even be unable to obtain, an abortion, yet

not realize that the new law is likely to have been the cause.

Those women would be unlikely to sue. Other women might

be able to find an abortion doctor who had admitting privi-

leges at a nearby hospital, yet still incur costs and delay be-

cause the law had reduced the number of doctors who are

allowed to perform abortions. Suits to recover the costs, in-

cluding some quantification of the cost of delay, would be

awkward. A suit by clinics and doctors seeking injunctive

relief is more feasible and if successful gives the women

what they want. If the clinics and doctors win, the patients

win.

And finally the Supreme Court held in Doe v. Bolton, 410

U.S. 179, 188 (1973) (the companion case to Roe v. Wade, 410

U.S. 113 (1973)), that abortion doctors (remember that the

No. 15-1736 5

two individual plaintiffs in this case are doctors employed

by abortion clinics) have first-party standing to challenge

laws limiting abortion when, as in Doe and the present case

as well, penalties for violation of the laws are visited on the

doctors. Wis. Stat. §§ 253.095(3), (4); see Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 903–04, 909

(1992) (plurality opinion); Planned Parenthood of Central Mis-

souri v. Danforth, 428 U.S. 52, 62 (1976); Karlin v. Foust, 188

F.3d 446, 456 n. 5 (7th Cir. 1999); Planned Parenthood of Wis-

consin v. Doyle, 162 F.3d 463, 465 (7th Cir. 1998).

Although signed into law on a Friday (July 5, 2013), Wis-

consin’s statute required compliance—the possession, by

every doctor who performs abortions, of admitting privileg-

es at a hospital within a 30-mile radius of each clinic at

which the doctor performs abortions—by the following

Sunday (July 7, 2013). See Wis. Stat. §§ 253.095(2), 991.11.

There was no way an abortion doctor, or any other type of

doctor for that matter, could obtain admitting privileges so

quickly, and there wouldn’t have been a way even if the two

days hadn’t been weekend days. As the district court found,

it takes a minimum of one to three months to obtain admit-

ting privileges and often much longer. It took ten months for

one of the individual plaintiffs to obtain admitting privileg-

es. It took eight months for the other one to obtain admitting

privileges at one hospital and nine months for her to obtain

them at another hospital. Moreover, hospitals are permitted

rather than required to grant such privileges, and some may

be reluctant to grant admitting privileges to abortion doctors

because there is great hostility to abortion in Wisconsin,

though as we’ll see hospitals have now granted such privi-

leges to a number of the state’s abortion doctors.

6 No. 15-1736

States that have passed laws similar to Wisconsin’s have

allowed much longer implementation time than a weekend—

for example, Mississippi allowed 76 days from statutory ap-

proval date to effective date, Alabama 83 days, and Texas

103 days. 2012 Miss. Gen. Laws 331 (H.B. 1390), enjoined in

Jackson Women’s Health Organization v. Currier, 760 F.3d 448

(5th Cir. 2014); 2013 Ala. Legis. Serv. 2013-79 (H.B. 57), en-

joined in Planned Parenthood Southeast, Inc. v. Bentley, 951 F.

Supp. 2d 1280 (M.D. Ala. 2013); 2013 Tex. Sess. Law Serv.

2nd Called Sess. Ch. 1 (H.B. 2), upheld in Planned Parenthood

of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583

(5th Cir. 2014). True, the statute had been passed by the Wis-

consin legislature weeks rather than days before it took ef-

fect, but weeks aren’t enough time in which to get admitting

privileges, and until the governor signed the law there could

be no certainty that it would become law; until then the

abortion doctors would not know whether they’d be re-

quired to obtain such privileges.

As of July 7 none of the doctors at either the AMS clinic

(in Milwaukee) or Planned Parenthood’s Appleton clinic had

admitting privileges at a hospital within the required 30-

mile distance from the clinic, and neither did two of the doc-

tors at Planned Parenthood’s Milwaukee clinic. On the date

of oral argument of the appeal from the grant of the prelimi-

nary injunction—almost five months after the law would

have taken effect had it not been for that injunction and the

temporary restraining order that preceded it—the applica-

tion of one of the doctors for admitting privileges had been

denied and none of the applications of the others had been

granted. Had enforcement of the statute not been stayed,

two of the state’s four abortion clinics—the one in Appleton

(the only one north of Milwaukee) and one of the Milwaukee

No. 15-1736 7

clinics—would have had to shut down because none of their

doctors had admitting privileges at a hospital within the

prescribed radius; and the capacity of a third clinic to per-

form abortions would have shrunk in half.

The state points out that abortion doctors have now had

more than two years since the statute was enacted in which

to obtain admitting privileges. But the legislature’s intention

to impose the two-day deadline, the effect of which would

have been to force half the Wisconsin abortion clinics to

close for months, is difficult to explain save as a method of

preventing abortions that women have a constitutional right

to obtain. The state tells us that “there is no evidence the

[Wisconsin] Legislature knew AMS physicians would be un-

able to comply with the Act.” That insults the legislators’ in-

telligence. How could they have thought that an abortion

doctor, or any doctor for that matter, could obtain admitting

privileges in so short a time as allowed? The clinics would

have had to close, and months would have passed before

they could reopen.

The fixing of such a short deadline for obtaining admit-

ting privileges, a deadline likely to deny many women the

right to an abortion for a period of months while the abor-

tion doctors tried to obtain those privileges, could be justi-

fied consistently with the Supreme Court’s abortion juris-

prudence only if there were reason to believe that the health

of women who have abortions is endangered if their abor-

tion doctors don’t have admitting privileges. The district

court correctly found that there is no reason to believe that.

A woman who experiences complications from an abortion

(either while still at the clinic where the abortion was per-

formed or at home afterward) will go to the nearest hospital,

8 No. 15-1736

which will treat her regardless of whether her abortion doc-

tor has admitting privileges. As pointed out in a brief filed

by the American College of Obstetricians and Gynecologists,

the American Medical Association, and the Wisconsin Medi-

cal Society, “it is accepted medical practice for hospital-

based physicians to take over the care of a patient and

whether the abortion provider has admitting privileges has

no impact on the course of the patient’s treatment.” As Dr.

Serdar Bulun, the expert witness appointed in this case by

the district judge under Fed. R. Evid. 706, testified, the most

important factor would not be admitting privileges, but

whether there was a transfer agreement between the clinic

and the hospital. As we’ve said, abortion doctors in Wiscon-

sin are required to have such transfer agreements. See Wis.

Admin. Code Med. § 11.04(1)(g). The treating doctor at the

hospital probably would want to consult with the doctor

who had performed the abortion, but for such a consultation

the abortion doctor would not need admitting privileges.

As it happens, complications from an abortion are both

rare and rarely dangerous—a fact that further attenuates the

need for abortion doctors to have admitting privileges. Two

studies cited in the amicus curiae brief filed by the American

College of Obstetricians and Gynecologists et al. and credit-

ed by the district judge—Tracy A. Weitz et al., “Safety of

Aspiration Abortion Performed by Nurse Practitioners, Cer-

tified Nurse Midwives, and Physician Assistants Under a

California Legal Waiver,” 103 Am. J. Public Health 454, 457–

58 (2013), and Kelly Cleland et al., “Significant Adverse

Events and Outcomes After Medical Abortion,” 121 Obstet-

rics & Gynecology 166, 169 (2013)—find that complications

occur in only 1 out of 112 physician-performed first-

trimester aspiration abortions (the most common type of

No. 15-1736 9

surgical abortion), and that 94 percent of those complications

are “minor.” Weitz et al., supra, at 457–58 tab. 2. For medical

abortion (abortion by pill), the rate of complications is only 1

in 153. Cleland et al., supra, at 169 tab. 2. The official Wiscon-

sin figure for 2013 is even lower: 1 complication per 404

abortions of all types. And finally only 1 in 1937 physician-

conducted aspiration abortions result in major complications

(a category which includes hospital admissions), and 1 in

1732 medical abortions require hospital admission. Weitz et

al., supra, at 456, 458–59; Cleland et al., supra, at 169 tab. 2.

These studies have found that the rate of complications is

below 1 percent; in the case of complications requiring hos-

pital admissions it is one-twentieth of 1 percent. The rate of

complications for second-trimester surgical abortions is

slightly higher—1.3 percent. Anna C. Frick et al., “Effect of

Prior Cesarean Delivery on Risk of Second-Trimester Surgi-

cal Abortion Complications,” 115 Obstetrics & Gynecology 760

(2010). In the five-year period 2009 to 2013, only 12 women

who had abortions at clinics in Wisconsin experienced com-

plications requiring transfer from clinic to hospital. Fifteen

additional women who had received abortions at a Planned

Parenthood clinic and left the clinic without apparent com-

plications later sought treatment at a hospital. The record

does not contain a comparable figure for the AMS clinic.

There is no evidence that any of these women received inad-

equate hospital care because the doctors who had performed

their abortions lacked admitting privileges.

One doctor with extensive experience in obstetrics and

gynecology told about a case in which a woman with a com-

plication from an abortion might, he thought, have avoided

a hysterectomy if her abortion doctor had called the hospital

10 No. 15-1736

or had had admitting privileges. That is the only evidence in

the record that any woman whose abortion resulted in a

medical complication has ever, anywhere in the United

States, been made worse off by being handed over by her

abortion doctor to a gynecologist, or other specialist with

relevant expertise, employed by the hospital to which she’s

taken. And the example doesn’t actually have anything to do

with admitting privileges. The abortion doctor didn’t need

admitting privileges at a hospital in order to call an ambu-

lance to take his patient to the nearest hospital, or to com-

municate with the treating doctor at the hospital—neither of

which he did. As the district judge found, in the case of abor-

tion “any benefit of admitting privileges in terms of continu-

ity of care is incrementally small.”

And as noted, Wisconsin abortion clinics—uniquely, it

appears, among outpatient providers of medical services in

Wisconsin—are required by law to adopt transfer protocols

intended to assure prompt hospitalization of any abortion

patient who experiences complications serious enough to

require hospitalization. See Wis. Admin. Code Med.

§ 11.04(1)(g).

The state presented no other evidence of complications

from abortions in Wisconsin that were not handled ade-

quately by the hospitals in the state. And no documentation

of a medical need for requiring abortion doctors to obtain

admitting privileges had been presented to the Wisconsin

legislature when it was deliberating on the bill that became

the statute challenged in this case. The only medical evi-

dence that had been submitted to the legislature had come

from a doctor representing the Wisconsin Medical Society—

and she opposed requiring that abortion doctors obtain ad-

No. 15-1736 11

mitting privileges. The only testimony presented to the legis-

lature that admitting privileges are important to continuity

of care was presented by a representative of Wisconsin Right

to Life who happens not to be a doctor. Indeed the legisla-

tive deliberations virtually ignored the provision concerning

admitting privileges, focusing instead on another provi-

sion—a requirement not challenged in this suit that a wom-

an seeking an abortion obtain an ultrasound examination of

her uterus first (if she hadn’t done so already), which might

induce her to change her mind about having an abortion.

Wis. Stat. § 253.10(3)(c)(1)(gm).

No other procedure performed outside a hospital, even

one as invasive as a surgical abortion, is required by Wiscon-

sin law to be performed by doctors who have admitting

privileges at hospitals within a specified radius of where the

procedure is performed. And that is the case even for proce-

dures performed when the patient is under general anesthe-

sia, and even though more than a quarter of all surgical op-

erations in the United States are now performed outside of

hospitals. Karen A. Cullen et al., “Ambulatory Surgery in the

United States, 2006,” Centers for Disease Control and Preven-

tion: National Health Statistics Reports No. 11, Sept. 4, 2009, p.

5, www.cdc.gov/nchs/data/nhsr/nhsr011.pdf (visited Nov.

21, 2015, as was the other website cited in this opinion). And

that is true even for such gynecological procedures as diag-

nostic dilation and curettage (D&C) (removal of tissue from

the inside of the uterus), hysteroscopy (endoscopy of the

uterus), and surgical completion of miscarriage (surgical re-

moval of fetal tissue remaining in the uterus after a miscar-

riage, which is a spontaneous abortion rather than one med-

ically induced)—procedures medically similar to abortion.

12 No. 15-1736

Dr. John Thorp, Jr., an expert witness for the defendants,

testified that abortion is more dangerous than D&C or hys-

teroscopy because there is increased blood flow during a

pregnancy. But one of the plaintiffs’ experts, Dr. Douglas

Laube, countered that a pregnant uterus responds better to

treatments to stop bleeding, making the risk of the proce-

dures roughly the same. The district judge was entitled to

credit Laube’s testimony over Thorp’s, and credit too the

studies placed in evidence that showed how rare major

complications of both hysteroscopy and second-trimester

surgical abortion are. See Morris Wortman et al., “Operative

Hysteroscopy in an Office-Based Surgical Setting: Review of

Patient Safety and Satisfaction in 414 Cases,” 20 J. Minimally

Invasive Gynecology 56 (2013); T. C. van Kerkvoorde et al.,

“Long-term Complications of Office Hysteroscopy: Analysis

of 1028 Cases,” 19 id. 494 (2012); Frick et al., supra.

Dr. Thorp acknowledged, moreover, that admitting

privileges are no more important for abortions than for other

outpatient procedures. Yet Wisconsin appears to be indiffer-

ent to complications of any other outpatient procedures,

even when they are far more likely to produce complications

than abortions are. For example, the rate of complications

resulting in hospitalization from colonoscopies done for

screening purposes is four times the rate of complications

requiring hospitalization from first-trimester abortions. See

Cynthia W. Ko et al., “Serious Complications Within 30 Days

of Screening and Surveillance Colonoscopy Are Uncom-

mon,” 8 Clinical Gastroenterology & Hepatology 166, 171–72

(2010). Operative colonoscopy has an even higher rate of ma-

jor complications, making it riskier than even second-

trimester abortions. See Jerome D. Waye et al., “Colonosco-

py: A Prospective Report of Complications,” 15 J. Clinical

No. 15-1736 13

Gastroenterology 347 (1992). It is conceivable that because of

widespread disapproval of abortion, abortions and their

complications may be underreported—some women who

experience them and are hospitalized may tell the hospital

staff that the complications are from a miscarriage. But there

is no evidence of significant or widespread underreporting.

The defendants argue that obtaining admitting privileges

operates as a kind of Good Housekeeping Seal of Approval

for a doctor. True; but obtaining the seal does not require

that the hospital in which the doctor obtains the privileges

be within 30 miles of his clinic. See, e.g., Women’s Health Cen-

ter of West County, Inc. v. Webster, 871 F.2d 1377, 1378–81 (8th

Cir. 1989). Several abortion doctors in Wisconsin who lack

admitting privileges at hospitals within the prescribed radi-

us have them—their Good Housekeeping Seals of Approv-

al—at more distant hospitals from their clinic yet are not ex-

cused by the statute from having to obtain the identical priv-

ileges from a hospital within the 30-mile radius.

The defendants argue that admitting privileges improve

continuity of care. But nothing in the statute requires an

abortion doctor who has admitting privileges to care for a

patient who has complications from an abortion. He doesn’t

have to accompany her to the hospital, treat her there, visit

her, call her, etc. The statute also does not distinguish be-

tween surgical and medical abortions. The latter term refers

to an abortion induced by pills given to the patient by her

doctor: she takes one pill in the clinic, goes home, and takes

an additional pill or pills one or two days later to complete

the procedure. Her home may be far from any hospital that

is within 30 miles of her doctor’s clinic, but close to a hospi-

tal farther from the clinic. If she calls an ambulance the par-

14 No. 15-1736

amedics are likely to take her to the nearest hospital—a hos-

pital at which her abortion doctor is unlikely to have admit-

ting privileges. Likewise in the case of surgical abortions

when complications occur not at the clinic during or imme-

diately after the abortion but after the patient has returned

home. Because of distance, she may lack ready access to

hospitals near the clinic at which the abortion was per-

formed. She may live near a hospital, but not a hospital at

which the doctor who performed her abortion has admitting

privileges.

We can imagine an argument that what Wisconsin did in

this case was to make the regulation of the treatment of abor-

tion complications simply the first step on the path to a regu-

lation of all potentially serious complications. But the de-

fendants have not argued this; nor is it plausible that the

state would begin such an effort with a procedure that has a

very low rate of serious complications. The statute has been

on the books for more than two years, yet there is no indica-

tion that the legislature has given any consideration to re-

quiring admitting privileges for any doctors other than abor-

tion providers.

The district judge had remarked in granting the prelimi-

nary injunction that while he would “await trial on the issue,

… the complete absence of an admitting privileges require-

ment for [other] clinical [i.e., outpatient] procedures includ-

ing for those with greater risk [than abortion] is certainly ev-

idence that [the] Wisconsin Legislature’s only purpose in its

enactment was to restrict the availability of safe, legal abor-

tion in this State, particularly given the lack of any demon-

strable medical benefit for its requirement either presented

to the Legislature or [to] this court.” Planned Parenthood of

No. 15-1736 15

Wisconsin, Inc. v. Van Hollen, No. 13–cv–465–wmc, 2013 WL

3989238, at *10 n. 26 (W.D. Wis. Aug. 2, 2013) (emphasis in

original). Confirmatory evidence is the statutory two-day

deadline for obtaining admitting privileges in order to be

allowed to perform abortions, though that deadline is of

course no longer operable. And we can’t forbear to mention

the weird private civil remedy for violations: The father, or a

grandparent, of the “aborted unborn child” is entitled to ob-

tain damages, including for emotional and psychological

distress, if the abortion was performed by a doctor who

lacked admitting privileges. Wis. Stat. § 253.095(4)(a). Were

the law aimed at protecting the mother’s health, as the state

contends, a violation of the law could harm the fetus’s father

or grandparent only if the mother were injured physically or

psychologically as a result of her abortion doctor’s lacking

the required admitting privileges. But the statute requires no

proof of any injury of any kind to the mother to entitle the

father or grandparent to damages upon proof of a violation

of the statute. Wis. Stat. § 253.095(4).

Until and unless Roe v. Wade is overruled by the Supreme

Court, a statute likely to restrict access to abortion with no

offsetting medical benefit cannot be held to be within the en-

acting state’s constitutional authority. The courts have “an

independent constitutional duty to review [a legislature’s]

factual findings where constitutional rights are at stake.”

Gonzales v. Carhart, 550 U.S. 124, 163–65 (2007). The Wiscon-

sin statute does not “further[] the legitimate interest” of the

state in advancing women’s health, and it was not “reasona-

ble for [the legislature] to think” that it would. Id. at 146, 160.

Were it not for the injunctions issued by the district court

(and the temporary restraining order that preceded them),

16 No. 15-1736

the statute would have substantially curtailed the availabil-

ity of abortion in Wisconsin, without conferring an offsetting

benefit (or indeed any benefit) on women’s health. Virtually

all abortions in Wisconsin are performed at the four abortion

clinics (the three Planned Parenthood clinics and the AMS

clinic); no other clinics perform abortions, and hospitals per-

form only a small fraction of the abortions performed in the

state. With the preliminary and now the permanent injunc-

tion having lifted the deadline for obtaining admitting privi-

leges, doctors at the three Planned Parenthood abortion clin-

ics (Milwaukee, Madison, and Appleton) have been able to

obtain admitting privileges at nearby hospitals. But the two

doctors at the fourth clinic, AMS, have been unable to obtain

such privileges at any hospital even though 17 hospitals are

within a 30-mile radius of the clinic.

Not that its doctors haven’t tried to obtain the privileges.

The district court found credible their testimony that the

chances of their being granted admitting privileges are “slim

to none.” The reason is that almost all of their practice con-

sists of performing abortions and they therefore lack recent

experience in performing inpatient medical procedures for

which hospitals would grant admitting privileges. Nor is

any of their clinical practice peer reviewed, which hospitals

also make a condition of granting admitting privileges. One

of the doctors couldn’t even obtain an application for admit-

ting privileges at Aurora-Sinai Hospital, because he couldn’t

show that he’d “treated patients in a hospital or appropriate

outpatient setting in which the Practitioner’s care was sub-

ject to evaluation through peer review acceptable to the Met-

ro Credentials Committee, in the previous twelve (12)

months.” Froedtert Hospital likewise rejected his applica-

tion, because he provided neither “evidence of recent (with-

No. 15-1736 17

in the past 2 years) inpatient activity” nor “an evaluation of

[his] ability to provide care for patients in the inpatient envi-

ronment.” The other AMS doctor was also rejected by Auro-

ra-Sinai, which told him he was ineligible to obtain full ad-

mitting privileges because he would be unable to admit the

required minimum of 20 patients per year, and that he could

not obtain courtesy privileges (which differ from full privi-

leges in allowing a doctor to admit only a very few patients)

without already having staff privileges at another hospital.

Another hospital, St. Joseph’s Community Hospital of West

Bend, requires applicants for obstetrics/gynecology admit-

ting privileges to have delivered 100 babies in the previous

two years, by which of course they mean live babies; and de-

livering live babies is not what abortion doctors do.

Moreover, all the hospitals require, as a condition to ob-

taining admitting privileges, demonstrated competence in

performing the particular procedures that the doctor seeks to

perform at the hospital on patients that he admits. Although

a defense expert from Columbia St. Mary’s Hospital testified

that the hospital would evaluate a physician’s quality with-

out requiring a record of inpatient care, he acknowledged

that a doctor seeking admitting privileges would have to

demonstrate competence to perform the specific procedures

for which he sought the privileges. Hospitals are entitled to

demand proof that doctors seeking to work at the hospital be

able to perform the procedures that they want to perform

there. But to condition the grant of admitting privileges on

being qualified to perform procedures that AMS’s abortion

doctors never perform is to bar them from performing abor-

tions.

18 No. 15-1736

So, as the district judge found, if the statute is valid nei-

ther of the AMS doctors will be allowed to perform any

abortions, and the clinic will have to shut down unless it can

recruit and retain other doctors—doctors who have or can

readily obtain admitting privileges within the prescribed ra-

dius of the clinic. But it is difficult to hire such doctors, not

only because it’s difficult for abortion doctors to obtain ad-

mitting privileges (especially within a prescribed radius of

the clinic) but also because of the vilification, threats, and

sometimes violence directed against abortion clinics and

their personnel in states, such as Wisconsin, in which there is

intense opposition to abortion.

AMS is particularly vulnerable because, as we’re about to

see, it’s the only abortion clinic in the state that performs

late-term abortions. But were the statute to be upheld,

Planned Parenthood’s clinics could also face having to close

or significantly reduce the abortions they perform, within a

few years, despite currently having doctors with admitting

privileges. Hospitals generally require that a doctor, to

maintain his admitting privileges, be responsible for admit-

ting a specified minimum number of patients annually. Be-

cause of the very low rate of complications from abortions

that require hospitalization, the required quotas may be dif-

ficult to meet.

One might think (setting that last point to one side for the

moment) that the Planned Parenthood abortion clinic in

Milwaukee would have adequate capacity to serve all wom-

en in the Milwaukee area who decide to have an abortion, in

which event the demise of AMS would be no big deal. Not

so. Of some 6462 abortions performed in Wisconsin in 2013

(the latest year for which there are complete figures), 5800

No. 15-1736 19

were performed in abortion clinics in the state (see Wiscon-

sin Department of Health Services, “Reported Induced

Abortions in Wisconsin, 2013,” Aug. 2014,

www.dhs.wisconsin.gov/publications/p4/p45360-13.pdf),

and 2500 of those were performed by AMS. (Presumably the

662 abortions not performed in abortion clinics were per-

formed in hospitals.)

The Planned Parenthood clinic in Milwaukee would have

to expand staff and facilities to accommodate such an influx

(the Planned Parenthood clinic in Appleton is more than a

hundred miles from Milwaukee, and the Madison clinic

eighty miles, distances that would impose hardship on some

women who live close to Milwaukee and are seeking abor-

tions), and this would be costly and could even be impossi-

ble given the difficulty of recruiting abortion doctors. The

district judge accepted uncontradicted testimony that

Planned Parenthood could not absorb the additional de-

mand for abortions, and the result (of demand exceeding

supply) would be an 8 to 10 week delay in obtaining an

abortion. Some women would have to forgo first-trimester

abortions and instead get second-trimester ones, which are

more expensive and present greater health risks. Other

women would be unable to obtain any abortion, because the

delay would push them past the 18.6-weeks-LMP (“last

menstrual period,” which is likely to precede conception by

a couple of weeks) deadline for the Planned Parenthood clin-

ics’ willingness to perform abortions. Only AMS will per-

form abortions beyond that limit (up to 22 and occasionally

24 weeks of pregnancy). Women seeking lawful abortions

that late in their pregnancy, either because of the waiting list

or because they hadn’t realized their need for an abortion

sooner, would be unable to obtain abortions in Wisconsin.

20 No. 15-1736

AMS performs about 250 late-term abortions each year

(and that’s without the additional patients who would be

pushed past 18.6 weeks by an 8 to 10 week waiting list).

And, to repeat, it’s the only abortion clinic in Wisconsin that

performs such abortions. Although the state points out that

these late-term abortions currently constitute fewer than one

percent of the abortions performed in the state, “the analysis

does not end with the one percent of women upon whom

the statute operates; it begins there.” Planned Parenthood of

Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 894 (plu-

rality opinion). For the longer the waiting list for an abor-

tion, the more women who want to have early-term abor-

tions will perforce end up having late-term ones, which are

more dangerous.

No problem, argues the state, since Chicago is only 90

miles from Milwaukee, and there is at least one clinic in Chi-

cago that will perform abortions after 19 weeks. The logic of

the state’s position is that it could forbid both abortion clin-

ics in Milwaukee to perform abortions on anyone living in

that city, given that the Chicago clinics are only about 90

miles away (and one clinic, in the northern suburbs of Chi-

cago, is only 74 miles from Milwaukee’s city center).

The state’s position is untenable. As we said in Ezell v.

City of Chicago, 651 F.3d 684, 697 (7th Cir. 2011), the proposi-

tion that

the harm to a constitutional right [can be] measured by the

extent to which it can be exercised in another jurisdiction

… [is] a profoundly mistaken assumption. In the First

Amendment context, the Supreme Court long ago made it

clear that “one is not to have the exercise of his liberty of

expression in appropriate places abridged on the plea that

No. 15-1736 21

it may be exercised in some other place.” Schad v. Borough

of Mt. Ephraim, 452 U.S. 61, 76–77 (1981), quoting Schneider

v. New Jersey, 308 U.S. 147, 163 (1939). The same principle

applies here. It’s hard to imagine anyone suggesting that

Chicago may prohibit the exercise of a free-speech or reli-

gious-liberty right within its borders on the ground that

those rights may be freely enjoyed in the suburbs.

Or as the Supreme Court put it in Missouri ex rel. Gaines v.

Canada, 305 U.S. 337, 350 (1938),

the obligation of the State to give the protection of equal

laws can be performed only where its laws operate, that is,

within its own jurisdiction. It is there that the equality of

legal right must be maintained. That obligation is imposed

by the Constitution upon the States severally as govern-

mental entities—each responsible for its own laws estab-

lishing the rights and duties of persons within its borders.

It is an obligation the burden of which cannot be cast by

one State upon another, and no State can be excused from

performance by what another State may do or fail to do.

See also Jackson Women’s Health Organization v. Currier, supra,

760 F.3d at 457–58. It’s true that we said in A Woman’s

Choice–East Side Women’s Clinic v. Newman, 305 F.3d 684, 688

(7th Cir. 2002), that the undue burden standard should be

applied “to the nation as a whole, rather than one state at a

time.” But the statement, though in seeming tension with

Gaines and Jackson, has nothing to do with looking at the

availability of abortion services across state lines. Instead the

court was worried that district judges in different states

might reach different conclusions about the constitutionality

of nearly identical statutes.

22 No. 15-1736

It’s also true, though according to the cases just quoted

irrelevant, that a 90-mile trip is no big deal for persons who

own a car or can afford an Amtrak or Greyhound ticket. But

more than 50 percent of Wisconsin women seeking abortions

have incomes below the federal poverty line and many of

them live in Milwaukee (and some north or west of that city

and so even farther away from Chicago). For them a round

trip to Chicago, and finding a place to stay overnight in Chi-

cago should they not feel up to an immediate return to Wis-

consin after the abortion, may be prohibitively expensive.

The State of Wisconsin is not offering to pick up the tab, or

any part of it. These women may also be unable to take the

time required for the round trip away from their work or the

care of their children. The evidence at trial, credited by the

district judge, was that 18 to 24 percent of women who

would need to travel to Chicago or the surrounding area for

an abortion would be unable to make the trip.

An abortion-restricting statute sought to be justified on

medical grounds requires not only reason to believe (here

lacking, as we have seen) that the medical grounds are valid,

but also reason to believe that the restrictions are not dis-

proportionate, in their effect on the right to an abortion, to

the medical benefits that the restrictions are believed to con-

fer and so do not impose an “undue burden” on women

seeking abortions. See Planned Parenthood of Southeastern

Pennsylvania v. Casey, supra, 505 U.S. at 874, 877, 900–01 (plu-

rality opinion); Gonzales v. Carhart, supra, 550 U.S. at 146,

157–58; Stenberg v. Carhart, 530 U.S. 914, 930, 938 (2000). To

determine whether the burden imposed by the statute is

“undue” (excessive), the court must “weigh the burdens

against the state’s justification, asking whether and to what

extent the challenged regulation actually advances the state’s

No. 15-1736 23

interests. If a burden significantly exceeds what is necessary

to advance the state’s interests, it is ‘undue,’” Planned

Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 913 (9th Cir.

2014), which is to say unconstitutional. The feebler the medi-

cal grounds (in this case, they are nonexistent), the likelier is

the burden on the right to abortion to be disproportionate to

the benefits and therefore excessive.

There are those who would criminalize all abortions,

thus terminating the constitutional right asserted in Roe and

Casey and a multitude of other decisions. And there are

those who would criminalize all abortions except ones that

terminate a pregnancy caused by rape or are necessary to

protect the life or (in some versions) the health of the preg-

nant woman. But what makes no sense is to abridge the con-

stitutional right to an abortion on the basis of spurious con-

tentions regarding women’s health—and the abridgment

challenged in this case would actually endanger women’s

health. It would do that by reducing the number of abortion

doctors in Wisconsin, thereby increasing the waiting time for

obtaining an abortion, and that increase would in turn com-

pel some women to defer abortion to the second trimester of

their pregnancy—which the studies we cited earlier find to

be riskier than a first-trimester abortion. For abortions per-

formed in the first trimester the rate of major complications

is 0.05-0.06 percent (that is, between five one-hundredths of

1 percent and six one-hundredths of 1 percent). It is 1.3 per-

cent for second-trimester abortions—between 22 and 26

times higher.

The burden on abortion imposed by the Wisconsin stat-

ute is greater than in the cases in which the Fourth and Fifth

Circuits have upheld similar admitting privileges require-

24 No. 15-1736

ments, because the plaintiffs in those cases failed to satisfy

the courts that the challenged statutes would lead to a sub-

stantial decline in the availability of abortion. In both

Planned Parenthood of Greater Texas Surgical Health Services v.

Abbott, supra, 748 F.3d at 597–98, and Greenville Women’s

Clinic v. Bryant, 222 F.3d 157, 162, 170 (4th Cir. 2000), the

courts decided that the evidence compelled only a conclu-

sion that one clinic in each state would close as a result of the

statute and each of those two clinics performed only a small

proportion of its state’s abortions.

The Fifth Circuit also upheld another requirement in the

same statute—that abortion clinics must meet the standards

for ambulatory surgical centers—despite the evidence that as

a result of this requirement only eight clinics would survive

out of the more than forty in existence when the statute was

enacted. Whole Woman’s Health v. Cole, 790 F.3d 563, 578 (5th

Cir. 2015), cert. granted, 2015 WL 5176368 (Nov. 13, 2015).

The court remarked the absence of evidence that the remain-

ing clinics could not expand their capacity to compensate for

the closing of more than three-fourths of them, id. at 590, alt-

hough one wouldn’t think it necessary to parade evidence

that the remaining clinics would find it extremely difficult to

quadruple their capacity to provide abortions, which would

require, in the face of fierce opposition to abortion clinics

and the difficulty of relocating abortion doctors from the

closed clinics, extensive physical enlargement to house addi-

tional patients and doctors.

A great many Americans, including a number of judges,

legislators, governors, and civil servants, are passionately

opposed to abortion—as they are entitled to be. But persons

who have a sophisticated understanding of the law and of

No. 15-1736 25

the Supreme Court know that convincing the Court to over-

rule Roe v. Wade and Planned Parenthood of Southeastern Penn-

sylvania v. Casey is a steep uphill fight, and so some of them

proceed indirectly, seeking to discourage abortions by mak-

ing it more difficult for women to obtain them. They may do

this in the name of protecting the health of women who have

abortions, yet as in this case the specific measures they sup-

port may do little or nothing for health, but rather strew im-

pediments to abortion. This is true of the Texas requirement,

upheld by the Fifth Circuit in the Whole Woman’s case now

before the Supreme Court, that abortion clinics meet the

standards for ambulatory surgical centers—a requirement

that if upheld will permit only 8 of Texas’s abortion clinics to

remain open, out of more than 40 that existed when the law

was passed. And comparably in our case the requirement of

admitting privileges cannot be taken seriously as a measure

to improve women’s health because the transfer agreements

that abortion clinics make with hospitals, plus the ability to

summon an ambulance by a phone call, assure the access of

such women to a nearby hospital in the event of a medical

emergency.

Opponents of abortion reveal their true objectives when

they procure legislation limited to a medical procedure—

abortion—that rarely produces a medical emergency. A

number of other medical procedures are far more dangerous

to the patient than abortion, yet their providers are not re-

quired to obtain admitting privileges anywhere, let alone

within 30 miles of where the procedure is performed. Nor is

it likely to have been an accident that the Wisconsin legisla-

ture, by making its law requiring admitting privileges effec-

tive immediately, would have prevented most of the abor-

tion doctors in the state from performing any abortions for

26 No. 15-1736

months (for it usually takes months to obtain admitting priv-

ileges) had the district court not issued a temporary restrain-

ing order followed immediately by a preliminary injunction.

In Planned Parenthood of Greater Texas the court excoriated

our opinion upholding the preliminary injunction in the pre-

sent case, on the ground that we had insisted on evidence that

requiring abortion doctors to have admitting privileges

would improve women’s health. 748 F.3d at 596. The Fifth

Circuit said that the “first step in the analysis of an abortion

regulation … is rational basis review, not empirical basis re-

view.” Id. (emphases in original). Indeed it said “there is

‘never a role for evidentiary proceedings’ under rational ba-

sis review.” Id. We take that to be a reference to the motive

for “rational basis” review of state laws—namely a reluc-

tance by the federal judiciary to invalidate state laws that

even if difficult to defend or explain by reference to sound

public policy do not cause harm serious enough to be classi-

fied as depriving persons of life, liberty, or property, howev-

er broadly those terms are understood.

But a statute that curtails the constitutional right to an

abortion, such as the Wisconsin and Texas statutes, cannot

survive challenge without evidence that the curtailment is

justifiable by reference to the benefits conferred by the stat-

ute. The statute may not be irrational, yet may still impose

an undue burden—a burden excessive in relation to the aims

of the statute and the benefits likely to be conferred by it—

and if so it is unconstitutional.

The evidence of benefits that was presented to the Texas

legislature and discussed by the Fifth Circuit was weak; in

our case it’s nonexistent. The principal witness for the State

of Wisconsin, Dr. Thorp, mentioned earlier, testified that the

No. 15-1736 27

death rate for women who undergo abortions is the same as

for other pregnant women. But he could not substantiate

that proposition and admitted that both rates are very low.

His expert report states that there are “increased risks of

death for women electing [abortion] compared to child-

birth,” but the studies he cited measured long-term mortali-

ty rates rather than death resulting from an abortion, and

also failed to control for socioeconomic status, marital status,

or a variety of other factors relevant to longevity. See David

Reardon & Priscilla Coleman, “Short and Long Term Mortal-

ity Rates Associated with First Pregnancy Outcome: Popula-

tion Register Based Study for Denmark 1980–2004,” 18 Medi-

cal Science Monitor PH71, PH75 (2012); Coleman et al., “Re-

productive History Patterns and Long-Term Mortality Rates:

A Danish, Population-Based Record Linkage Study,” 23 Eu-

ropean J. Public Health 569, 569, 573 (2012). In contrast, the

plaintiffs’ expert Dr. Laube tendered a more apt study which

concluded that the risk of death associated with childbirth is

14 times higher than that associated with abortion. See Eliza-

beth G. Raymond & David A. Grimes, “The Comparative

Safety of Legal Induced Abortion and Childbirth in the

United States,” 119 Obstetrics & Gynecology 215 (Feb. 2012).

Dr. Thorp acknowledged that the number of abortion

providers is declining, but attributed this (again without

substantiation) not to harassment but to our society’s “pro-

gressing in its recognition of what constitutes human life.”

And he agreed as we noted earlier that admitting privileges

are no more necessary for abortion than for other outpatient

surgical procedures. Neither Thorp nor any other witness for

the defendants was able to cite a case in which a woman

who had a complication from an abortion wasn’t properly

treated for it because her abortion doctor lacked admitting

28 No. 15-1736

privileges. The evidence was heavily weighted against the

defendants. We do not agree with the Fifth Circuit that evi-

dence is irrelevant in a constitutional case concerning abor-

tion.

The state insists that the plaintiffs’ medical expert and the

neutral expert agreed with it that admitting privileges

would be a good thing for abortion doctors to have. But a

fair interpretation of their testimony is that a doctor’s admit-

ting privileges are of value to a patient because they suggest

that the hospital that has granted them thinks well of the

doctor and because he may be able to expedite the admission

of a patient who needs hospital care to the hospital in which

the doctor has those privileges. These witnesses did not testi-

fy that an abortion doctor who lacks admitting privileges is a

danger to his patients. The neutral expert, Dr. Bulun, said

that privileges could have advantages, but he was compar-

ing a doctor with privileges to one without privileges; he

was not asked whether a shortage of abortion doctors,

though such abortion doctors as there were all had privileg-

es, would be preferable to there being enough abortion doc-

tors but not all with admitting privileges. He added that “if

there’s a well-established procedure for a transfer agree-

ment, in my mind that would be the most important factor

to ensure good quality of care.” There is no evidence that

transfer agreements provide inferior protection to the health

of women undergoing abortion compared to admitting priv-

ileges. When the transfer agreements and the availability of

emergency-room care and the rarity of complications of abor-

tion that require hospitalization are compared to the impact

this statute would have on access to abortion in Wisconsin, it

is apparent that the defendants have failed to make a dent in

No. 15-1736 29

the district court’s opinion granting the permanent injunc-

tion sought by the plaintiffs.

AFFIRMED

30 No. 15-1736

MANION, Circuit Judge, dissenting.

In June 2013, the Wisconsin legislature introduced a statute

requiring abortion doctors to have admitting privileges at a

nearby hospital. The statute was signed into law the following

month, and the plaintiffs obtained a preliminary injunction

from the district court, which we affirmed. Planned Parenthood

of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013). The

district court then granted a permanent injunction on the

merits, finding that the admitting-privileges requirement

unconstitutionally infringed on a woman’s right to abortion.

Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949

(W.D. Wis. 2015). Relying on the novel legal standard crafted

by the majority in Van Hollen, the district court reached this

result by shifting the burden onto the state to adduce empirical

evidence justifying the rationality of its regulation. Id. at

962–64. This was error. Under well-established Supreme

Court precedent, the state may constitutionally regulate

abortion so long as it has a rational basis to act and does not

impose an undue burden. Gonzales v. Carhart, 550 U.S. 124, 158

(2007). Because Wisconsin’s admitting-privileges requirement

satisfies this standard, I dissent.

I

Between 2009 and 2013, at least nineteen women who

sought abortions at Planned Parenthood clinics in Wisconsin

subsequently received hospital treatment for abortion-related

complications.1 Surely, no reasonable patient considering a

1

See Dkt. 198 ¶ 11. The record also reveals that, during that period, at least

four patients who received abortions at those clinics were transferred from

the clinics to a hospital by ambulance for abortion-related complications,

and four women reported that they had post-abortion infections that

No. 15-1736 31

medical procedure known to result in

complications—potentially even death—would regard state

measures designed to minimize those risks as an imposition on

her constitutional rights. After all, patients are more likely to

undergo medical procedures when they know that discrete

measures have been taken by the state to reduce the likelihood

of harm. Recognizing these basic facts, the four other federal

appellate circuits that have examined similar admitting-

privilege requirements have found or assumed a rational basis

for them. This is such common sense that it would scarcely

warrant mention in any other context. But this case involves

abortion, so all bets are off.

Safety is not a negligible concern in any field of healthcare.

Abortion—which is subject to less regulatory oversight than

almost any other area of medicine—bears no exception. When

we first reviewed Wisconsin’s admitting-privileges require-

ment, my concurrence cited numerous examples of egregious

“abortion care” in states across the nation. One article detailed

the practices at former abortionist Kermit Gosnell’s clinic in

Pennsylvania, which included unlicensed personnel conduct-

ing gynecological examinations and administering painkillers.

These practices resulted in the death of a patient named

Karnamaya Mongar, who died after being given an overdose

of anesthesia and pain medication. Media reports also circu-

resulted in treatment at a hospital. Id. ¶¶ 12–13. Additionally, between 2009

and 2014, at least eight AMS abortion patients were transferred directly

from AMS’s abortion clinic to a hospital to treat serious complications from

an abortion procedure performed by one of AMS’s physicians. Id. ¶ 26.

During that same time period, at least three AMS abortion patients suffered

complications serious enough that a hysterectomy was required, resulting

in those patients no longer being able to bear children. Id. ¶ 27.

32 No. 15-1736

lated that Dr. Gosnell physically assaulted and performed a

forced abortion on a minor and left fetal remains in a woman’s

uterus, causing her excruciating pain.

Dr. Gosnell was ultimately convicted of murder for the

deaths of three infants delivered alive but subsequently killed

at his clinic. In light of the nationwide attention that Dr.

Gosnell’s shop of horrors attracted, the Wisconsin State

Assembly acted swiftly to pass Act 37, including the admitting-

privileges requirement at issue, in order to protect the health

and safety of pregnant women who have chosen an abortion.

This lawsuit followed.

Dr. Gosnell was able to run his operation in a regulatory

vacuum derived in no small part from the view held by some

that any regulation upon his practice was a threat to the

constitutional rights of his patients. Although we have recog-

nized that doctors may bring suit on behalf of their abortion

patients, it does not automatically follow that doctors and

patients have identical interests. The constitutional right to

privacy exists across the spectrum of medical procedures, yet

in no other area of medicine may a doctor bring a suit on behalf

of a patient solely because the doctor finds a safety regulation

cumbersome. Where state regulation imposes on doctors

measures designed to improve patient safety, doctor-patient

interests may diverge. Because that is precisely the case in this

instance, we must look to the regulation’s effect on the pro-

spective patient, not to the inconvenience the regulation

presents to the abortionist.

Rather than shift the burden to the state to provide reasons

it was justified to enact the law at issue, we are obligated to

uphold a law that regulates abortion where there is a rational

basis to act so long as the law does not have the effect of

No. 15-1736 33

imposing an undue burden on a woman’s ability to make the

decision to choose abortion. Here, the court sets this burden of

proof exactly backwards. Because Wisconsin’s admitting-

privileges requirement protects the health and safety of

pregnant women and does not constitute an undue burden

under Casey, I would join the Fifth Circuit’s merits decision in

Planned Parenthood of Greater Texas Surgical Health Services v.

Abbott, 748 F.3d 583 (5th Cir. 2014), reh’g en banc denied, 769 F.3d

330 (5th Cir. 2014) (Abbott II), which upheld a functionally

identical law on similar facts. All of these facts lead me to the

conclusion that the judgment of the district court should be

reversed. For the reasons that follow, I dissent.

II

A. Wisconsin has a Rational Basis to protect the health

and safety of pregnant women seeking an abortion.

The Supreme Court’s surviving abortion cases have

repeatedly affirmed that the state has a substantial interest in

regulating abortion in furtherance of its interests in promoting

the health and safety of pregnant women. See, e.g., Gonzales v.

Carhart, 550 U.S. 124, 158, 163 (2007); Stenberg v. Carhart, 530

U.S. 914, 931 (2000); Mazurek v. Armstrong, 520 U.S. 968, 973

(1997) (per curiam); Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 846, 878 (1992) (plurality); Roe v. Wade, 410 U.S. 113,

150, 163 (1973). So have ours. See, e.g., Karlin v. Foust, 188 F.3d

446, 478 (7th Cir. 1999); Planned Parenthood of Wis. v. Doyle, 162

F.3d 463, 467 (7th Cir. 1998).

Although the court purports to be consistent with these

cases, in reality, its decision undermines the state’s interest

recognized within them. By doing so, the court sets a danger-

ous precedent that jeopardizes the ability of states to enact

34 No. 15-1736

laws designed to curb risks to the safety and welfare of patients

who choose to undergo invasive medical

procedures—including the women whom this admitting-

privileges law protects. A brief reminder of the Supreme

Court’s repeated emphasis on the state’s interest in protecting

the health and safety of pregnant women who have chosen

abortion is apparently necessary.

B. The Supreme Court’s abortion decisions

In Roe, the Court recognized that a state has a “legitimate

interest in seeing to it that abortion, like any other medical

procedure, is performed under circumstances that insure

maximum safety for the patient.” Roe, 410 U.S. at 150. The

Court concluded that the state’s legitimate interest in regulat-

ing abortion to protect maternal health “obviously extends at

least to [regulating] the performing physician and his staff, to

the facilities involved, to the availability of after-care, and to

adequate provision for any complication or emergency that

may arise.” Id. Roe left no doubt that the state “may regulate

the abortion procedure to the extent that the regulation

reasonably relates to the preservation and protection of

maternal health.” Id. at 163.

In Casey, the Court abandoned Roe’s rigid trimester frame-

work. Casey, 505 U.S. at 872–76. But not before reiterating that

“the State has legitimate interests from the outset of the

pregnancy in protecting the health of the woman and the life

of the fetus that may become a child.” Id. at 846. Further, the

Court added that, “[a]s with any medical procedure, the State

may enact regulations to further the health or safety of a

woman seeking an abortion.” Id. at 878.

Five years later, in Mazurek, the Court rejected a challenge

No. 15-1736 35

brought by abortion providers to a state law that restricted the

provision of abortions only to licensed physicians. Mazurek,

520 U.S. at 976. By so ruling, the Court recalled that its “cases

reflect the fact that the Constitution gives the States broad

latitude to decide that particular functions may be performed

only by licensed professionals.” Id. at 973 (citation omitted).

Shortly thereafter, in Stenberg, the Court underscored Roe

and Casey’s commitment to the health and safety of pregnant

women by striking down a federal law that made partial-birth

abortion illegal because it failed to contain a “health exception

. . . ‘for the preservation of the life or health of the mother.’”

Stenberg, 530 U.S. at 938 (citation omitted). In laying the

foundation for its decision, the Court first recalled that it has

“repeatedly invalidated statutes that in the process of regulat-

ing the methods of abortion, imposed significant health risks.”

Id. at 931 (emphasis omitted). Channeling Casey, the Court then

summarized the state’s interest in the health of pregnant

women as follows: “‘where it is necessary, in appropriate

medical judgment for the preservation of the life or health of

the mother,’ [] this Court has made clear that a State may

promote but not endanger a woman’s health when it regulates

the methods of abortion.” Id. (citations omitted).

Most recently, in Gonzales, the Court consolidated these

principles, acknowledging that “[w]here it has a rational basis

to act, and it does not impose an undue burden, the State may

use its regulatory power” to regulate abortion. Gonzales 550

U.S. at 158. Gonzales held that state and federal lawmakers

have “wide discretion to pass legislation in areas where there

is medical and scientific uncertainty.” Id. at 163 (citations

omitted). In short, over four decades of Supreme Court

decisions establish that the state has a legitimate interest in

36 No. 15-1736

promoting the health and safety of pregnant women seeking

an abortion.

C. The court splits with four federal appellate circuits.

Mindful of the health and safety interests recognized in

these decisions, Wisconsin and eleven other states have passed

admitting-privilege laws. Planned Parenthood of Wis. v. Van

Hollen, 738 F.3d 786, 791 (7th Cir. 2013). Lawsuits initiated by

abortion providers followed, and multiple circuits have ruled

on their constitutionality. The rationales deployed in these

decisions have varied, but two facts are common throughout.

First, every circuit to rule on similar admitting-privileges laws

like the one at issue here has uniformly upheld them. Second,

no circuit except ours has ventured anywhere close to adopting

the extreme position taken by the court that a state’s admitting-

privileges law lacks a rational basis. See Whole Women’s Health

v. Cole, 790 F.3d 563, 584 (5th Cir. 2015) (plaintiffs challenging

Texas’s admitting-privileges law concede it is supported by a

rational basis); Jackson Women’s Health Org. v. Currier, 760 F.3d

448, 454 (5th Cir. 2014) (“H.B. 1390 satisfies rational basis

review based upon our binding precedent in Abbott.”); Planned

Parenthood of Ariz., Inc. v. Humble, 753 F.3d 905, 914 (9th Cir.

2014) (“We assume without deciding that the Arizona law

passes rational-basis review.”); Abbott II, 748 F.3d at 595

(“Applying the rational basis test correctly, we have to con-

clude that the State acted within its prerogative to regulate the

medical profession by heeding these patient-centered concerns

and requiring abortion practitioners to obtain admitting

privileges at a nearby hospital.”); Planned Parenthood of Greater

Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 411 (5th Cir.

2013) (Abbott I) (“The State offered more than a conceivable

state of facts that could provide a rational basis for requiring

No. 15-1736 37

abortion physicians to have hospital admission privileges.”)

(footnote and internal marks omitted); Greenville Women’s

Clinic v. Comm’r, S.C. Dep’t of Health & Envtl. Control, 317 F.3d

357, 363 (4th Cir. 2002) (“These requirements of having

admitting privileges at local hospitals and referral arrange-

ments with local experts are so obviously beneficial to

patients.”) (citations omitted); Women’s Health Ctr. of W. Cty.,

Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989) (“We have no

difficulty in concluding that [the admitting-privileges law]

rationally relates to the state’s legitimate interest in ensuring

that prompt backup care is available to patients who undergo

abortions in outpatient clinics.”).

The rational basis standard is no stranger to the judiciary.

Federal courts across the nation apply it regularly when

constitutional challenges are brought against state action.

Familiar as it may be, the district court failed to apply it,

proceeding instead as though the state bore the burden of

proving that its admitting-privileges law was reasonably

related to the health and safety of women seeking abortions.

Van Hollen, 94 F. Supp. 3d at 964 (“Since the State contends that

the admitting privileges requirement at issue is reasonably

directed to the health of women seeking abortions, it has the

burden of demonstrating this link.”) (citations omitted).

That’s exactly backwards. Under rational basis review,

courts must presume that the law in question is valid and

uphold it so long as the law is rationally related to a legitimate

state interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 440 (1985). Since the Supreme Court has repeatedly

recognized the state’s longstanding interest in protecting the

health and safety of pregnant women who have chosen

abortion, at this juncture, “we must presume that the

38 No. 15-1736

admitting-privileges requirement is constitutional, and uphold

it so long as the requirement is rationally related to Wisconsin’s

legitimate interests.” Van Hollen, 738 F.3d at 800 (Manion, J.,

concurring in part and in the judgment) (citations omitted).

The party challenging an abortion restriction bears the burden

of proving the government’s action irrational. See Mazurek, 520

U.S. at 971 (citing Casey, 505 U.S. at 884). To prove a legislative

act irrational, “the burden is on the one attacking the legislative

arrangement to negate every conceivable basis which might

support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (citation

omitted). This is a tall order because “the government may

defend the rationality of its action on any ground it can

muster.” RJB Props., Inc. v. Bd. of Educ. of Chic., 468 F.3d 1005,

1010 (7th Cir. 2006) (citation and internal marks omitted).

Thus, the inquiry for courts under rational basis review

starts with this question: is there “any reasonably conceivable

state of facts that could provide a rational basis” for the state

regulation? See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313

(1993); Abbott I, 734 F.3d at 411. As demonstrated above, the

answer to that question is yes. So the next question to ask is

whether the state’s means of promoting its regulation (admit-

ting privileges) are reasonably related to the legitimate interest

already established (patient safety). If that answer is also yes,

then the regulation satisfies rational basis review, and we must

uphold it. That the controversy implicates abortion does not

alter the analysis because “[n]othing in the Supreme Court’s

abortion jurisprudence deviates from the essential attributes of

the rational basis test, which affirms a vital principle of

No. 15-1736 39

democratic self-government.” Abbott II, 748 F.3d at 594.2

D. Admitting privileges further Wisconsin’s legitimate

state interest in patient safety.

Admitting privileges are, in the words of the Fourth Circuit,

“obviously beneficial.” Greenville Women’s Clinic, 317 F.3d at

363 (citation omitted). So beneficial, in fact, that the National

Abortion Federation recommended them until only recently.

At trial, Wisconsin’s expert, Dr. James Anderson, Clinical

Professor in the Department of Family Practice & Population

Health at Virginia Commonwealth University School of

Medicine, referenced a publication from the National Abortion

Federation entitled Having an Abortion? Your Guide to Good Care

(2000), which states that “[i]n the case of emergency, the doctor

should be able to admit patients to a nearby hospital (no more

than 20 minutes away).” Dkt. 244 at 237–40; Dkt. 126 ¶¶ 6-7.

Indeed, the medical community has long been of the

opinion that admitting privileges provide a real benefit to the

2

In its efforts to wrest this case from the ambit of rational basis review, the

court assigns great weight to numerous studies and reports which contend

that complications rarely occur after abortions and that those which do

occur are not more frequent than other types of outpatient surgeries. But

this is immaterial because courts do not weigh evidence when they apply

rational basis review. See Nat’l Paint & Coatings Ass’n v. City of Chic., 45 F.3d

1124, 1127 (7th Cir. 1995) (recalling that there is “never a role for eviden-

tiary proceedings” under rational basis review). For the plaintiffs to prevail,

they must prove that post-abortion complications never occur in Wisconsin,

or that admitting privileges have no impact on safety. See Heller, 509 U.S. at

321 (“[T]he burden is on the one attacking the legislative arrangement to

negate every conceivable basis which might support it.”) (citation and

internal marks omitted). However, that is not possible on this record,

because the plaintiffs’ own expert and the court-appointed expert testified

that admitting privileges are beneficial because they make abortion safer.

40 No. 15-1736

health and safety of pregnant women seeking an abortion. In

2003, the American College of Surgeons issued a statement on

patient-safety principles that was joined by the American

Medical Association and the American College of Obstetricians

and Gynecologists. They listed several “core principles,” the

fourth of which provided that: “[p]hysicians performing

office-based surgery must have admitting privileges at a

nearby hospital, a transfer agreement with another physician

who has admitting privileges at a nearby hospital, or maintain

an emergency transfer agreement with a nearby hospital.”3

Perplexingly, in this case, the AMA and ACOG have filed

a joint amicus brief arguing that Wisconsin’s admitting-

privileges law is unconstitutional. Yet their brief makes no

mention of their 2003 statement or their sudden, yet conve-

nient, disavowal of one of their “core principles” related to

patient safety. It appears from the trial testimony that plaintiff-

doctors have simply decided that admitting privileges are only

desirable insofar as they do not cause members of their guild

to become ineligible to perform abortions.

Abbott II also supports this conclusion. There, the court

observed that “[t]here are four main benefits supporting the

requirement that operating surgeons hold local hospital

admitting and staff privileges: (a) it provides a more thorough

evaluation mechanism of physician competency which better

protects patient safety; (b) it acknowledges and enables the

importance of continuity of care; (c) it enhances inter-physician

3

See American College of Surgeons, Statement on Patient Safety Principles

for Office-based Surgery Utilizing Moderate Sedation/Analgesia, Deep Seda-

tion/Analgesia, or General Anesthesia, Bulletin of the American College of

Surgeons, Vol. 89, No. 4 (Apr. 2004), available at http://www.facs.org/

fellows_info/statements/st-46.html (last visited Nov. 12, 2015).

No. 15-1736 41

communication and optimizes patient information transfer and

complication management; and (d) it supports the ethical duty

of care for the operating physician to prevent patient aban-

donment.” Abbott II, 748 F.3d at 592. Here, the parties have

consolidated these four categories of benefits into three. The

trial record contains evidence that admitting privileges are

rationally related to a legitimate state interest because they

promote the health and safety of pregnant women seeking

abortions in Wisconsin.4 Therefore, at the first step of the

Gonzales test, this requirement is subject to rational basis

review. I address each benefit in turn.

i. Continuity of care

Continuity of care is beneficial to abortion patients because

it reduces the “risk of injury caused by miscommunication and

misdiagnosis when a patient is transferred from one health

care provider to another.” Abbott II, 748 F.3d at 595. Indeed,

even plaintiff and expert witness Dr. Kathy King of Planned

Parenthood agreed that continuity of care is a necessary

ingredient when treating patients. Dkt. 243 at 155.

4

The district court presupposed that the lack of required admitting

privileges for other, more dangerous medical procedures showed that the

only purpose of Wisconsin’s law was to restrict safe, legal abortions. It also

concluded that the immediate effective date after signing was clearly

intended to close the clinics. But the legislative purpose was not to

immediately close the clinics. The legislature approved the statutes several

weeks before the governor signed the legislation. There is no evidence that

their apparent failure to designate a specific effective date was anything

other than a simple oversight. The preliminary injunction, with which I

concurred, quickly cured that problem. Significantly, the preliminary

injunction and the delay in connection with the trial enabled all of Planned

Parenthood’s abortion doctors to acquire admitting privileges.

42 No. 15-1736

Dr. King’s opinion was shared by the court-appointed

expert, Dr. Serdar Bulun, Chair of the Department of Obstetrics

and Gynecology at Northwestern University’s Feinberg School

of Medicine, who also opined that “physician to physician

communication is one of the most important requirements for

optimal handling of a complication arising from a procedure,”

and that “communication should ideally take place between

the physician performing the abortion and the physician at the

hospital, who will be handling the complication.” 7th Cir. Dkt.

44 at 4.5 Dr. Bulun testified further that admitting privileges

would have benefits “probably 90% of the time,” Dkt. 244 at 60,

and that while transfer agreements were important, “in an

ideal world both [admitting privileges and transfer agree-

ments] should exist.” Id. at 61.

Likewise, Wisconsin’s experts, including Dr. Anderson and

Dr. John Thorp (a board-certified ob-gyn who teaches at the

University of North Carolina’s School of Public Health), opined

that admitting privileges aided in promoting continuity of care.

5

In its standing analysis, the court correctly recognizes that a woman who

has had or is expecting to have an abortion does not want her name exposed

as a plaintiff in a lawsuit challenging the constitutionality of the law

regulating abortion practices. The same privacy concerns would be

encountered if a woman suffering from an abortion-related injury had to go

to the nearest emergency room. There she would have to give her name and

disclose the cause of her injury (or else lie about it, suggesting that it must

have been a natural miscarriage). She may also have to wait in line before

being treated, or undergo preliminary examinations to determine the nature

and source of the problem. If admitting privileges were in place, by

contrast, the woman’s operating physician could bypass any embarrassing

delay and promptly secure the woman’s admission and treatment upon

arrival. In this way, the physician-to-physician communication facilitated

by the admitting-privileges requirement would help protect the woman’s

privacy and promote more efficient remedial treatment.

No. 15-1736 43

Id. at 233 (Dr. Anderson); Dkt. 131 ¶ 22 & Dkt. 164 ¶ 15 (Dr.

Thorp).

The opinions of these medical professionals are shared, too,

by the Fifth Circuit, which concluded that “[r]equiring abortion

providers to have admitting privileges would also promote the

continuity of care in all cases, reducing the risk of injury caused

by miscommunication and misdiagnosis when a patient is

transferred from one health care provider to another.” Abbott

II, 748 F.3d at 595.

ii. Credentialing

Similarly, the “credentialing process entailed in the regula-

tion reduces the risk that abortion patients will be subjected to

woefully inadequate treatment.” Id. In other words,

credentialing advances the state’s interest in promoting patient

health by helping ensure that doctors performing abortions are

qualified. Dr. Geoffrey R. Keyes, president of the American

Association for Accreditation of Ambulatory Surgery Facilities,

opined that “credentialing and privileging serve important and

necessary functions in contemporary medical practice, primar-

ily to ensure that patients receive safe high quality care from

providers with appropriate skill, training and experience.” Dkt.

127 ¶ 15.

In addition to the testimony of Dr. Anderson, Dkt. 244 at

232–33, Dr. Bulun opined that a benefit of physicians having

admitting privileges is “to ensure that the practicing physicians

are appropriately qualified, trained and competent to practice

in a specific area of medicine or surgery.” 7th Cir. Dkt. 44 at 3.

The Fifth Circuit agreed, stating that the “requirement that

physicians performing abortions must have hospital admitting

privileges helps to ensure that credentialing of physicians

beyond initial licensing and periodic license renewal occurs.”

44 No. 15-1736

Abbott I, 734 F.3d at 411.

iii. Accountability and peer review

Finally, in addition to Wisconsin’s experts and Dr. Bulun,

plaintiffs’ own expert witness, Dr. Douglas W. Laube, a

Professor of Obstetrics and Gynecology at the University of

Wisconsin Medical School, and past president of the American

College of Obstetricians and Gynecologists, testified that

accountability and peer review was a benefit to women’s

health promoted by Wisconsin’s admitting-privileges require-

ment. Dkt. 244 at 65–66.6

III

A. Wisconsin’s admitting-privileges requirement does not

6

While the only issue on appeal is the mandate for admitting privileges,

another very important purpose of Wisconsin’s law was the requirement for

ultrasounds. As I pointed out in my earlier concurrence, receiving an

ultrasound before an abortion benefits women in several ways. For starters,

the ultrasound would confirm the fact that she was pregnant. Once she saw

or heard the heartbeat, she would be assured that there is not a mistaken

pregnancy test or a spontaneous miscarriage that was not earlier detected.

Thus she would avoid paying several hundred dollars for an unnecessary

operation. Also, the ultrasound would help reduce medical uncertainty and

disclose any potential complications, such as by enabling a more accurate

assessment of the gestational stage of the pregnancy. The detection of twins

might also give the woman second thoughts. But regardless of whether

certain legislators hoped that an ultrasound would cause the woman to

change her mind, the ultrasound indisputably provides important

information facilitating a more fully informed decision, which cannot be

seen as anything but a benefit to the woman (even if the abortionist might

disapprove of her decision). The obvious benefits flowing from the

ultrasound requirement show that Wisconsin’s law is supported by a

number of rational bases—all centered on the health and welfare of the

woman—in addition to those advanced by the requirement for admitting

privileges.

No. 15-1736 45

impose an Undue Burden on a woman’s ability to choose

abortion.

The record evidence I have cited establishes beyond a doubt

that the Wisconsin State Assembly had a “rational basis to act”

in passing this admitting-privileges law in order to protect the

health and safety of pregnant women who choose abortion in

Wisconsin. See Gonzales, 550 U.S. at 158. Given that

“[r]egulations designed to foster the health of a woman seeking

an abortion are valid if they do not constitute an undue

burden,” Casey, 505 U.S. at 877–78, the next question is whether

this law has the effect of imposing an undue burden on the

ability of women to choose abortion.

The Casey plurality first described the “undue burden” test

as follows: “A finding of an undue burden is a shorthand for

the conclusion that a state regulation has the purpose or effect

of placing a substantial obstacle in the path of a woman

seeking an abortion of a nonviable fetus.” Id. at 877. We said

that, in application, “a court’s proper focus must be on the

practical impact of the challenged regulation and whether it

will have the likely effect of preventing a significant number of

women for whom the regulation is relevant from obtaining

abortions.” Karlin, 188 F.3d at 481. The Supreme Court then

simplified Casey’s description of an undue burden by collaps-

ing the purpose inquiry into the effects test. See Gonzales, 550

U.S. at 158; Currier, 760 F.3d at 460 n.4 (Garza, J., dissenting).

That is the second step of our analysis.

As an intermediate appellate court, we are bound to apply

standards established by the Supreme Court. When this case

was first before us, however, the court majority shifted the

burden to the state to justify the medical necessity of its

admitting-privileges law and characterized the undue burden

46 No. 15-1736

standard for the district court to apply on remand as follows:

The cases that deal with abortion-related statutes sought

to be justified on medical grounds require not only

evidence (here lacking as we have seen) that the medical

grounds are legitimate but also that the statute not

impose an “undue burden” on women seeking abor-

tions. The feebler the medical grounds, the likelier the

burden, even if slight, to be “undue” in the sense of

disproportionate or gratuitous.

Van Hollen, 738 F.3d at 798 (citations omitted). Although I

concurred in that judgment affirming the preliminary injunc-

tion because the law provided no grace period for abortion

doctors to acquire admitting privileges before the law requir-

ing them took effect, I did not then—nor do I today—endorse

the home-brewed “undue burden” standard that the court now

doubles-down on. Simply stated, it finds no basis in Gonzales,

Casey, or any other case law other than that which it created.

See Whole Women’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.

2014) (“Under our precedent, we have no authority by which

to turn rational basis into strict scrutiny under the guise of the

undue burden inquiry.”). By reversing the burdens of proof,

the court also implicitly rejects Mazurek, 520 U.S. at 971, which

requires that the party challenging an abortion restriction bear

the burden of proof. See Abbott II, 748 F.3d at 597.

1. Effect of AMS’s potential closure on the Undue Burden

analysis

In Wisconsin, Planned Parenthood operates abortion clinics

in Milwaukee, Madison, and Appleton. Its abortion providers

at each of those clinics have secured admitting privileges.

Affiliated Medical Services (AMS) operates one abortion clinic

No. 15-1736 47

in Milwaukee. Drs. Dennis Christensen and Bernard Smith

staff AMS and are, at present, the only abortion providers in

Wisconsin to conduct abortions after 18.6 weeks LMP (com-

monly known as “late-term abortions”). Neither has secured

admitting privileges. Consequently, the plaintiffs contend that

AMS risks closure, and that, if that occurs, women seeking

abortions in Wisconsin will face three undue burdens: (1)

significantly increased wait times; (2) required travel to

Chicago or other locations; and (3) no inpatient option for

women seeking late-term abortions in Wisconsin. I address

these arguments in turn.

a. Wait times

Dr. King of Planned Parenthood testified that, if AMS were

to close, it would “overwhelm the capacity of the Planned

Parenthood of Wisconsin clinics to accommodate” the 2,500

women who incurred abortions at AMS in 2013. Dkt. 243 at

147–48. In crediting this testimony, the district court errone-

ously characterized the undue burden standard as requiring

“access to abortion services in Wisconsin.” Van Hollen, 94 F.

Supp. 3d at 989. The Supreme Court’s abortion jurisprudence

carries no intrastate guarantee.

“Although all pre-viability regulations burden a woman’s

ability to obtain an abortion to some degree, the Court [in

Casey] explained that an abortion law is not rendered unconsti-

tutional merely because it operates to make it more difficult or

more expensive to procure an abortion.” Karlin, 188 F.3d 479

(citing Casey, 505 U.S. at 874). Casey rejected the notion that the

abortion right is the right “to decide whether to have an

abortion without interference from the State.” Casey, 505 U.S.

at 875 (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428

U.S. 52, 61 (1976)) (internal marks omitted). Rather, the

48 No. 15-1736

abortion right recognized by Roe is the “right to be free from

unwarranted governmental intrusion” in making the abortion

decision. Id. (citation and internal marks omitted). Ultimately,

Casey summarizes the undue burden standard as follows:

Only where state regulation imposes an undue burden

on a woman’s ability to make this decision does the

power of the State reach into the heart of the liberty

protected by the Due Process Clause.

Id. 874 (citations omitted).

The Supreme Court has held that the constitutional right to

privacy extends to a woman’s right to choose abortion; it has

not held, or even implied, that this right is intrastate in nature.

To be sure, there is no constitutional right to obtain an abortion

at the clinic of one’s choice and at the time of one’s conve-

nience, just as one’s right to free speech does not apply in all

places a protester might desire to complain. In the same way

that a state may reasonably regulate speech if it leaves open

adequate alternative forums for expression, increased wait

times at one clinic do not constitute an undue burden when

other clinics within a reasonable distance remain open for

business. See, e.g., Abbott II, 748 F.3d at 598 (clinic closure was

not undue burden when another clinic was accessible within

150 miles); Women’s Med. Prof. Corp. v. Baird, 438 F.3d 595, 605

(6th Cir. 2006) (same within 45 to 55 miles); Greenville Women’s

Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir. 2000) (same within

70 miles).

AMS is one of four abortion clinics in Wisconsin and two in

Milwaukee. Even if it closed, patrons seeking pre-18.6 week

LMP abortions (approximately 98% of women seeking abor-

tions in Wisconsin) would need to travel a mere 1.3 miles (four

No. 15-1736 49

minutes by automobile) to reach Planned Parenthood’s

Milwaukee clinic instead.7

The plaintiffs argue that the state creates an undue burden

under Casey when a regulation designed to protect the health

and safety of pregnant women decreases the availability of

qualified abortionists. The implications of this argument are

astounding. Taken to its logical end, this argument would

require the state to assume some affirmative duty both to

provide abortion services and to do so in a manner that is

convenient for consumers of abortion and with no regard for

the quality of healthcare professionals that a state’s naturally

occurring marketplace provides. The state bears no such

obligation or duty. Karlin, 188 F.3d at 479 (“Although all pre-

viability regulations burden a woman’s ability to obtain an

abortion to some degree, the Court explained [in Casey] that an

abortion law is not rendered unconstitutional merely because

it operates to make it more difficult or more expensive to

procure an abortion.”) (citation omitted).

While the Supreme Court has limited a state’s ability to

regulate abortions, it has never required a state to establish a

command economy in order to provide them. That the market

may disfavor abortionists is not the state’s concern, but the

7

Statistics indicate that approximately 98% of women seeking abortions in

Milwaukee will not be impacted if AMS closes. In 2012, there were 6,927

abortions reported in Wisconsin. Dkt. 200 ¶ 9. That same year, AMS

performed 131 post-20 week LMP abortions. Dkt. 243 at 29–30. Although

these statistics do not account for the women who incurred abortions after

18.6 weeks LMP, but before 20 weeks LMP, the post-20 week number

accounts for less than 2% of all abortions in Wisconsin. Women seeking the

latest term abortions permitted by law have access to other clinics in

Chicago that are well within a distance held not to be an undue burden, as

I discuss below.

50 No. 15-1736

prerogative of the purveyors of that service. Like any enter-

prise that wishes to be a going concern, entities that wish to sell

abortions must hire practitioners who are able to secure the

necessary credentials on the basis of their professional reputa-

tions and their documented provision of skilled care.8 In this

instance, these credentials include admitting privileges.

The solution to the plaintiffs’ problems is that they find

more qualified doctors, not that the state relax—or that we

strike down as unconstitutional—precautions taken by the

state to protect the health and safety of pregnant women who

have chosen to abort their pregnancies. See Casey, 505 U.S. at

875 (rejecting the notion that the abortion right is the right “to

decide whether to have an abortion without interference from

the State”). Lest there be any doubt, Wisconsin labors under no

8

The court refers to a few hospitals that require doctors to have treated a

certain number of patients there in order to obtain admitting privileges.

Other hospitals might give admitting privileges to doctors who demon-

strate competence in the particular procedure that the doctor seeks to

perform. Of course, a hospital that requires delivering 100 live babies in the

previous two years would not give the AMS doctors admitting privileges

because, as the court observes, “delivering live babies is not what abortion

doctors do.” And as the court also noted when discussing the very low

death rate for women who undergo abortions, the study cited measured

long-term mortality rates “rather than death resulting from an abortion.”

However, to their credit, the Planned Parenthood doctors at the other three

abortion clinics in Wisconsin have apparently demonstrated sufficient

competence in medical procedures, perhaps even delivering live babies, to

qualify for and to obtain the statutorily required admitting privileges. For

women considering abortion, that credential that distinguishes them from

AMS is worth noting. Although the court implies otherwise, it is safe to say

that the Planned Parenthood doctors will not depend on the “rare” abortion

complication to obtain a sufficient volume of hospital work to maintain

their admitting privileges.

No. 15-1736 51

compulsory receivership that obligates it to intervene if the

market fails to provide qualified abortionists within its

boundaries. State inaction is not state action.

In short, there is simply no basis for us to disrupt the

market for abortionists by interjecting ourselves: their abilities

to qualify for admitting privileges, like “[t]he independent

decisions of private hospitals[,] have no place in our review of

state action under the Constitution.” Currier, 760 F.3d at 460

(Garza, J., dissenting) (citation and footnote omitted).

b. Required travel and availability of late-term abortions

Consumers who live near the border of two states tend to

shop at the closest destination, regardless of whether they

reside in that state. Disregarding this routine assumption,

plaintiffs argue that requiring women seeking abortion to

travel outside the state to obtain late-term abortions creates an

undue burden. Surprisingly, this argument finds some basis in

the Fifth Circuit’s recent decision in Jackson Women’s Health

Organization v. Currier, 760 F.3d 448, 457 (5th Cir. 2014), where

the court held that “the proper formulation of the undue

burden analysis focuses solely on the effects within the

regulating state.” However, our precedent squarely disagrees

with Jackson: “the undue-burden standard must be applied . .

. to the nation as a whole, rather than one state at a time.” A

Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684,

688 (7th Cir. 2002).

Turning towards distance rather than towards the gover-

nor’s mansion, Chicago is approximately 93 miles from

Milwaukee—or a one hour and forty minute drive. The Fifth

Circuit recently held that Texas’s admitting-privileges law did

not impose an undue burden on a woman’s right to choose

52 No. 15-1736

abortion because “travel of less than 150 miles for some women

is not an undue burden under Casey.” Abbott II, 748 F.3d at 598

(citation omitted). Before Abbott II, the Sixth Circuit similarly

concluded that there was no undue burden under Casey where

one of two Ohio clinics to conduct 18–24 week abortions was

closed due to lack of a transfer agreement with a local hospital,

even when the remaining clinic was located over 200 miles

away. See Baird, 438 F.3d at 599, 605. Consistent with these

authorities, it is well within the scope of Newman to conclude

that the 93-mile trip from Milwaukee to Chicago to obtain an

abortion does not impose an undue burden on a woman’s

ability to choose abortion. 305 F.3d at 688.

2. Even if the undue burden standard applied to the

market availability of abortion doctors, the AMS abortionists

made minimal efforts to obtain admitting privileges.

When this case was before us on the preliminary injunction,

I asked plaintiffs’ counsel at oral argument about the status of

the plaintiffs’ applications for admitting privileges at Wiscon-

sin hospitals. Counsel was unable to confirm whether any

doctors servicing the four abortion clinics in Wisconsin

possessed admitting privileges, nor did she know the status of

any pending applications by her clients to obtain them.9

i. Planned Parenthood’s efforts to obtain admitting privileges

We know more now. At least six Planned Parenthood

9

Of course, I recognize that, at the preliminary injunction stage, it was in

counsel’s clients’ best interests for her to be non-responsive to my question

because if she had informed us that some of her clients already possessed

admitting privileges, some of the clinics would likely have remained open

even in light of the law’s immediate effect, and we may have been less

likely to affirm the injunction entered by the district court.

No. 15-1736 53

abortion doctors—Dr. Susan Pfleger, Dr. Kathy King, and

pseudonymous plaintiffs P1, P2, P3, and P5—all of whom did

not have admitting privileges when this lawsuit was filed, have

subsequently obtained them. See Van Hollen, 94 F. Supp. 3d at

988–89 . These individuals put forth sufficient efforts to obtain

admitting privileges and were successful, proving that obtain-

ing admitting privileges is not an insurmountable obstacle,

even for abortion doctors.

ii. AMS’s efforts to obtain admitting privileges

The same cannot be said of Drs. Christensen and Smith.

Milwaukee has over two dozen hospitals,10 yet Dr. Smith only

attempted to apply for admitting privileges at one hospital

(and had the AMS manager send an inquiry email to another).

Dr. Christensen (who had admitting privileges for decades

before entering semi-retirement) attempted to apply for

admitting privileges at two hospitals, but did not attempt to

satisfy their informational requests. In the words of the district

court, these “efforts” demonstrate that both doctors “fail[ed] to

exhaust all opportunities” to obtain admitting privileges. Id. at

987. I agree with that assessment. Moreover, while both

doctors were savvy enough to 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’ arguments to the contrary,

indifference towards the law by abortion providers that results

in an abortion clinic’s potential closure does not create an

10

See Discover Milwaukee - Metro Milwaukee Hospitals,

http://www.discovermilwaukee.com/healthcare-and-fitness/metro-milw

aukee-hospitals/ (last visited Nov. 12, 2015).

54 No. 15-1736

undue burden.

IV

I regret that today’s decision marks the latest chapter in our

circuit’s continued misapplication of the Supreme Court’s

abortion jurisprudence. By a majority of one, the court has

eliminated a measure that Wisconsin’s elected officials have

enacted to protect the health and safety of women who choose

to incur an abortion. There is no question that Wisconsin’s

admitting-privileges requirement furthers the legitimate,

rational basis of protecting women’s health and welfare.

Among other benefits, the requirement promotes continuity of

care and helps to ensure that abortionists are properly

credentialed and qualified. It also works in tandem with

Wisconsin’s ultrasound requirement to facilitate informed

decision-making on the parts of doctor and patient alike. Nor

is there any indication that the requirement would pose a

substantial obstacle to women’s ability to access abortion

providers in their area. As Planned Parenthood’s successful

applications for admitting privileges demonstrate, the hospitals

of Wisconsin are perfectly willing to grant admitting privileges

to qualified physicians who perform abortions in their state.

Because Wisconsin’s admitting-privileges requirement has the

rational basis of promoting the health and safety of pregnant

women who have decided to incur an abortion, and because it

does not impose an undue burden under Casey, I dissent.