Health Law

7th Circuit overturns abortion regulation; Posner says health benefit is 'nonexistent'

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Gavel and abortion sign

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The Chicago-based 7th U.S. Circuit Court of Appeals has struck down a Wisconsin abortion law that required abortion doctors to have admission privileges at a hospital within 30 miles.

Writing for the majority in the 2-1 opinion (PDF), Judge Richard Posner said the law would shut down one of the state’s four abortion clinics—the only one that performs late-term abortions—and would “actually endanger women’s health.” How Appealing links to coverage by the Milwaukee Journal Sentinel, the Wisconsin State Journal, the Associated Press and Reuters.

Posner said the law could harm women by increasing the waiting period for abortions, pushing the procedure into the second trimester. Any health benefit is “nonexistent,” Posner said, because the state’s abortion clinics are already required to have transfer agreements with hospitals and women can visit the emergency room in any event.

Posner also cited evidence that complications from an abortion are “both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges.”

The opinion also pointed out that Wisconsin law does not require doctors who perform other outpatient procedures to have admission privileges at nearby hospitals, even for procedures performed when the patient is under general anesthesia.

“Wisconsin appears to be indifferent to complications of any other outpatient procedures,” Posner said, “even when they are far more likely to produce complications than abortions are.”

The U.S. Supreme Court has agreed to review the constitutionality of a Texas law that also has an admission privileges requirement. The Texas law also requires abortion clinics to comply with standards that apply to ambulatory surgery centers.

Posner said the admission privileges requirement in Wisconsin imposes a greater burden on the right to abortion than the one in Texas because of evidence the Texas admission provision would not lead to a substantial decline in the availability of abortion. The Texas requirement for clinics to meet standards for ambulatory care, however, would close all but eight of Texas’ 40 abortion clinics, Posner said.

Judge Daniel Manion dissented, saying the Wisconsin law “furthers the legitimate, rational basis of protecting women’s health and welfare.”

“Safety is not a negligible concern in any field of healthcare,” Manion wrote. “Abortion—which is subject to less regulatory oversight than almost any other area of medicine—bears no exception.” He cited the case of former abortion doctor Kermit Gosnell in Pennsylvania, who was convicted of murder in the deaths of three infants who initially survived late-term abortions. The Wisconsin State Assembly reacted to the news reports with passage of the admission privileges law, he said.

“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,” Manion wrote.

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