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
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
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
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,
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
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:
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
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, 127 S.Ct. 1610.
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 (with-in the past 2
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 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 abortions.
So, as the district judge found, if the statute is valid neither 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 radius of the clinic. But it is difficult to hire such doctors, not only because it's difficult for abortion doctors to obtain admitting 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 admitting a specified minimum number of patients annually. Because of the very low rate of complications from abortions that require hospitalization, the required quotas may be difficult 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 women 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 were performed in abortion clinics in the state (see Wisconsin 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
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 abortions), and this would be costly and could even be impossible given the difficulty of recruiting abortion doctors. The district judge accepted uncontradicted testimony that Planned Parenthood could not absorb the additional demand 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 clinics' willingness to perform abortions. Only AMS will perform 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.
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, 112 S.Ct. 2791 (plurality opinion). For the longer the waiting list for an abortion, the more women who want to have early-term abortions 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 Chicago that will perform abortions after 19 weeks. The logic of the state's position is that it could forbid both abortion clinics 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 Chicago, 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 proposition that
Or as the Supreme Court put it in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350, 59 S.Ct. 232, 83 L.Ed. 208 (1938),
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.
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 Chicago should they not feel up to an immediate return to Wisconsin after the abortion, may be prohibitively expensive. The State of Wisconsin is not offering to pick up the tab, or any part of it. 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 disproportionate, in their effect on the right to an abortion, to the medical benefits that the restrictions are believed to confer 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, 112 S.Ct. 2791 (plurality opinion); Gonzales v. Carhart, supra, 550 U.S. at 146, 157-58, 127 S.Ct. 1610; Stenberg v. Carhart, 530 U.S. 914, 930, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (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 interests. If a burden significantly exceeds what is necessary to advance the state's interests, it is `undue,'" Planned Parenthood Arizona, Inc. v.
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 pregnant woman. But what makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions 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 compel 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 performed 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 percent for second-trimester abortions—between 22 and 26 times higher.
The burden on abortion imposed by the Wisconsin statute is greater than in the cases in which the Fourth and Fifth Circuits have upheld similar admitting privileges requirements, because the plaintiffs in those cases failed to satisfy the courts that the challenged statutes would lead to a substantial 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 conclusion 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, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___, 2015 WL 5176368 (Nov. 13, 2015). The court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them, id. at 590, although 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 additional 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 the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill
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 required 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 legislature, by making its law requiring admitting privileges effective immediately, would have prevented most of the abortion doctors in the state from performing any abortions for months (for it usually takes months to obtain admitting privileges) had the district court not issued a temporary restraining order followed immediately by a preliminary injunction.
In Planned Parenthood of Greater Texas the court excoriated our opinion upholding the preliminary injunction in the present 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 review." Id. (emphases in original). Indeed it said "there is `never a role for evidentiary proceedings' under rational basis review." Id. We take that to be a reference to the motive for "rational basis" review of state laws—namely a reluctance 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 classified as depriving persons of life, liberty, or property, however 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 statute. 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 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
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 "progressing 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 privileges. The evidence was heavily weighted against the defendants. We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion.
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 admitting 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 testify 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 comparing 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 privileges, would be preferable to there being enough abortion doctors but not all with admitting privileges. He added that "if there's a well-established procedure for a transfer agreement, 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 privileges. When the transfer agreements and the availability of emergency-room care and the rarity of complications of abortion 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 the district court's opinion granting the permanent injunction sought by the plaintiffs.
MANION, Circuit Judge, dissenting.
In June 2013, the Wisconsin legislature introduced a statute requiring abortion
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.
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 requirement, 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 conducting 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 circulated 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 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 recognized 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 prospective 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 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.
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, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007); Stenberg v. Carhart, 530 U.S. 914, 931, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Mazurek v. Armstrong, 520 U.S. 968, 973, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality); Roe v. Wade, 410 U.S. 113, 150, 163, 93 S.Ct. 705, 35 L.Ed.2d 147 (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 dangerous precedent that jeopardizes the ability of states to enact laws designed to curb risks to the safety and
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, 93 S.Ct. 705. The Court concluded that the state's legitimate interest in regulating 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, 93 S.Ct. 705.
In Casey, the Court abandoned Roe's rigid trimester frame-work. Casey, 505 U.S. at 872-76, 112 S.Ct. 2791. 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, 112 S.Ct. 2791. 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, 112 S.Ct. 2791.
Five years later, in Mazurek, the Court rejected a challenge brought by abortion providers to a state law that restricted the provision of abortions only to licensed physicians. Mazurek, 520 U.S. at 976, 117 S.Ct. 1865. 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, 117 S.Ct. 1865 (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, 120 S.Ct. 2597 (citation omitted). In laying the foundation for its decision, the Court first recalled that it has "repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks." Id. at 931, 120 S.Ct. 2597 (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, 127 S.Ct. 1610. 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, 127 S.Ct. 1610 (citations
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 conclude 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 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 arrangements 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, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Since the Supreme Court has repeatedly recognized the state's longstanding
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, 113 S.Ct. 2096, 124 L.Ed.2d 211 (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 (admitting 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 democratic self-government." Abbott II, 748 F.3d at 594.
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
Indeed, the medical community has long been of the opinion that admitting privileges provide a real benefit to the 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."
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 convenient, 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 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 abandonment." 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.
i. Continuity of care
Continuity of care is beneficial to abortion patients because it reduces the "risk of injury caused by miscommunication and
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.
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. 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.
Similarly, the "credentialing process entailed in the regulation 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, primarily 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
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 requirement. Dkt. 244 at 65-66.
A. Wisconsin's admitting-privileges requirement does not 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, 127 S.Ct. 1610. 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, 112 S.Ct. 2791, 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, 112 S.Ct. 2791. 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 collapsing the purpose inquiry into the effects test. See Gonzales, 550
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 standard for the district court to apply on remand as follows:
Van Hollen, 738 F.3d at 798 (citations omitted). Although I concurred in that judgment affirming the preliminary injunction because the law provided no grace period for abortion doctors to acquire admitting privileges before the law requiring 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, 117 S.Ct. 1865, 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 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 (commonly 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 erroneously 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 unconstitutional merely because it operates to make it more difficult
Id. 505 U.S. at 874, 112 S.Ct. 2791 (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 convenience, 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 abortions in Wisconsin) would need to travel a mere 1.3 miles (four minutes by automobile) to reach Planned Parenthood's Milwaukee clinic instead.
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 previability 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
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 prerogative of the purveyors of that service. Like any enterprise 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 reputations and their documented provision of skilled care.
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, 112 S.Ct. 2791 (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 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 . . .
Turning towards distance rather than towards the governor'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 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 Wisconsin 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.
i. Planned Parenthood's efforts to obtain admitting privileges
We know more now. At least six Planned Parenthood 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 obtaining 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,
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.