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Planned Parenthood of Wis., Inc. v. Schimel

United States Court of Appeals, Seventh Circuit

November 23, 2015

PLANNED PARENTHOOD OF WISCONSIN, INC., et al., Plaintiffs-Appellees,
v.
BRAD D. SCHIMEL, Attorney General of Wisconsin, et al., Defendants-Appellants

Argued October 1, 2015

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13-cv-00465-wmc -- William M. Conley, Chief Judge.

For Planned Parenthood of Wisconsin, Incorporated, SUSAN PFLEGER, Doctor, Plaintiffs - Appellees: Laurence Jacques Dupuis, American Civil Liberty, Union of Wisconsin, Milwaukee, WI; Carrie Y. Flaxman, Attorney, Planned Parent, Federation of America, Washington, DC; Lester A. Pines, Attorney, Cullen Weston Pines & Bach LLP, Madison, WI; Roger K. Evans, Attorney, Diana Salgado, Attorney, Planned Parenthood, Federation of America, Legal Action for Reproductive Rights, New York, NY.

For Milwaukee Women's Medical Services, doing business as: AFFILIATED MEDICAL SERVICES, Plaintiff - Appellee: Laurence Jacques Dupuis, Attorney, American Civil Liberty, Union of Wisconsin, Milwaukee, WI; Lester A. Pines, Attorney, Cullen Weston Pines & Bach LLP, Madison, WI; Jennifer Lee, Attorney, American Civil Liberties Union, New York, NY.

For KATHY KING, Doctor, Substituted for Fredrik Broekhuizen, M.D., Plaintiff - Appellee: Carrie Y. Flaxman, Attorney, Planned Parent, Federation of America, Washington, DC; Roger K. Evans, Attorney, Diana Salgado, Attorney, Planned Parenthood, Federation of America, Legal Action for Reproductive Rights, New York, NY; Lester A. Pines, Attorney, Cullen Weston Pines & Bach LLP, Madison, WI.

For ISMAEL OZANNE, District Attorney for Dane County, in his official capacity and as representative of a class of all District Attorneys in the State of Wisconsin, BRAD D. SCHIMEL, Attorney General of Wisconsin, in his official capacity, JAMES BARR, Medical Examining Board Member, in his official capacity, MARY JO CAPODICE, Medical Examining Board Member, in her official capacity, GREG COLLINS, Medical Examining Board Member, in his official capacity, Defendants - Appellants: Brian Patrick Keenan, Attorney, Clayton P. Kawski, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

For Hospital-Credential Administrators, Consultants, And Committee Members, Amicus Curiae: Simona Agnolucci, Attorney, Keker & Van Nest LLP, San Francisco, CA.

For American College of Obstetricians And Gynecologists, American Medical Association, Wisconsin Medical Society, Inc., Amicus Curiaes: Alan Scott Gilbert, Attorney, Dentons U.S. LLP, Chicago, IL.

Before POSNER, MANION, and HAMILTON, Circuit Judges. MANION, Circuit Judge, dissenting.

OPINION

Page 909

Posner, Circuit Judge.

On July 5, 2013, the Governor of Wisconsin signed into law a statute that the Wisconsin legislature 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 admitting 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 becomes 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 uninsured. 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 Women's Medical Services (also known as Affiliated Medical Services, commonly referred to as AMS)--which operate

Page 910

the only four abortion clinics in Wisconsin--joined by two doctors employed by Planned Parenthood, filed suit on the day the governor signed the statute into law. The plaintiffs challenged 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 (not the entire statute, just the provision regarding admitting privileges for abortion doctors--but for simplicity we'll generally call that provision " the statute" ).

The defendants (the Wisconsin attorney general, Wisconsin district attorneys, the Wisconsin Secretary of the Department 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 injunction 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 desiring abortions and none of them is a plaintiff. But we explained 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 legally, though that might be an alternative ground for recognizing a clinic's standing, but rather " the confidential nature of the physician-patient relationship and the difficulty for patients of directly vindicating their rights without compromising 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. Fallon, 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 affected 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 privileges at a nearby hospital, yet still incur costs and delay because the law had reduced the number of doctors who are allowed to perform abortions. Suits to recover the costs, including some quantification of the cost of delay, would be awkward. A suit by clinics and doctors

Page 911

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, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (the companion case to Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)), that abortion doctors (remember that the 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, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Karlin v. Foust, 188 F.3d 446, 456 n. 5 (7th Cir. 1999); Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 465 (7th Cir. 1998).

Although signed into law on a Friday (July 5, 2013), Wisconsin's statute required compliance--the possession, by every doctor who performs abortions, of admitting privileges 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 admitting privileges and often much longer. It took ten months for one of the individual plaintiffs to obtain admitting privileges. 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 privileges to a number of the state's abortion doctors.

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 approval 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), enjoined 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 Wisconsin legislature weeks rather than days before it took effect, 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 required 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 doctors at Planned Parenthood's Milwaukee clinic. On the date of oral argument of the appeal from the grant of the preliminary injunction--almost five months after the law

Page 912

would have taken effect had it not been for that injunction and the temporary restraining order that preceded it--the application 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 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 perform 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 unable to comply with the Act." That insults the legislators' intelligence. 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 admitting privileges, a deadline likely to deny many women the right to an abortion for a period of months while the abortion doctors tried to obtain those privileges, could be justified consistently with the Supreme Court's abortion jurisprudence only if there were reason to believe that the health of women who have abortions is endangered if their abortion 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 performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor 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 Medical 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 Wisconsin 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 credited by the district judge--Tracy A. Weitz et al., " Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California Legal Waiver," 103 Am. J. Public Health 454, 457-58 (2013),

Page 913

 and Kelly Cleland et al., " Significant Adverse Events and Outcomes After Medical Abortion," 121 Obstetrics & 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 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 Wisconsin 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 hospital 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 Surgical 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 complications requiring transfer from clinic to hospital. Fifteen additional women who had received abortions at a Planned Parenthood clinic and left the clinic without apparent complications 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 inadequate 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 complication from an abortion might, he thought, have avoided a hysterectomy if her abortion doctor had called the hospital 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 ambulance to take his patient to the nearest hospital, or to communicate with the treating doctor at the hospital--neither of which he did. As the district judge found, in the case of abortion " any benefit of admitting privileges in terms of continuity 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 adequately 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 evidence that had been submitted to the legislature had come

Page 914

from a doctor representing the Wisconsin Medical Society--and she opposed requiring that abortion doctors obtain adNo. mitting privileges. The only testimony presented to the legislature 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 legislative deliberations virtually ignored the provision concerning admitting privileges, focusing instead on another provision--a requirement not challenged in this suit that a woman 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 Wisconsin 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 procedures performed when the patient is under general anesthesia, and even though more than a quarter of all surgical operations 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 Prevention: 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 diagnostic 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 removal of fetal tissue remaining in the uterus after a miscarriage, which is a spontaneous abortion rather than one medically induced)--procedures medically similar to abortion.

Dr. John Thorp, Jr., an expert witness for the defendants, testified that abortion is more dangerous than D& C or hysteroscopy 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 procedures 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 indifferent 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 Uncommon," 8 Clinical Gastroenterology & Hepatology 166, 171-72 (2010). Operative colonoscopy has an even higher rate of major complications, making it riskier than even second-trimester abortions. See Jerome D. Waye et al., " Colonoscopy:

Page 915

A Prospective Report of Complications," 15 J. Clinical 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 Center 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 radius have them--their Good Housekeeping Seals of Approval-- at more distant hospitals from their clinic yet are not excused by the statute from having to obtain the identical privileges 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 between 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 hospital farther from the clinic. If she calls an ambulance the paramedics are likely to take her to the nearest hospital--a hospital at which her abortion doctor is unlikely to have admitting privileges. Likewise in the case of surgical abortions when complications occur not at the clinic during or immediately 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 performed. 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 abortion complications simply the first step on the path to a regulation of all potentially serious complications. But the defendants 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 indication that the legislature has given any consideration to requiring admitting privileges for any doctors other than abortion providers.

The district judge had remarked in granting the preliminary injunction that while he would " await trial on the issue, ... the complete absence of an admitting privileges requirement for [other] clinical [i.e., outpatient] procedures including for those with greater risk [than abortion] is certainly evidence that [the] Wisconsin Legislature's only purpose in its enactment was to restrict the availability of safe, legal abortion in this State, particularly given the lack of any demonstrable medical benefit for its requirement either presented to the Legislature or [to] this court." Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL

Page 916

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 obtain 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 enacting 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, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). The Wisconsin statute does not " further[] the legitimate interest" of the state in advancing women's health, and it was not " reasonable 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), the statute would have substantially curtailed the availability 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 perform only a small fraction of the abortions performed in the state. With the preliminary and now the permanent injunction having lifted the deadline for obtaining admitting privileges, doctors at the three Planned Parenthood abortion clinics (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 consists 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 admitting 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 subject to evaluation through peer review acceptable to the Metro Credentials Committee, in the previous twelve (12) months." Froedtert Hospital likewise rejected his application, because he provided neither " evidence of recent (within the past 2

Page 917

years) inpatient activity" nor " an evaluation of [his] ability to provide care for patients in the inpatient environment." The other AMS doctor was also rejected by Aurora-Sinai, which told him he was ineligible to obtain full admitting 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 privileges 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 admitting privileges to have delivered 100 babies in the previous two years, by which of course they mean live babies; and delivering live babies is not what abortion doctors do.

Moreover, all the hospitals require, as a condition to obtaining 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 without 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 ...


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