U.S. Supreme Court rejects Wisconsin appeal over abortion law
By Jason Stein and Dana Ferguson of the Journal Sentinel June 23, 2014
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The nation’s highest court on Monday turned down Wisconsin’s bid to reinstate a state law requiring abortion doctors to have admitting privileges at nearby hospitals, leaving the rule blocked for now amid an ongoing legal challenge.
The U.S. Supreme Court declined to hear the appeal by state Attorney General J.B. Van Hollen, who wanted the justices to put the state law back into effect while lower courts consider the law’s ultimate fate.
A federal judge in Madison is poised to issue a final ruling on the lawsuit by Planned Parenthood of Wisconsin and another clinic challenging the law. The abortion groups in the case argue the law amounts to an unconstitutional restriction on women’s access to abortion in Wisconsin because of the challenges that doctors are finding in obtaining admitting privileges.
U.S. District Judge William Conley put the law on ice last summer while he considers a final ruling and a federal appeals court in Chicago upheld Conley’s initial injunction of the law. In refusing without comment to hear Van Hollen’s appeal Monday, the U.S. Supreme Court left in place the initial rulings by Conley and the 7th Circuit Court of Appeals.
The courts could still issue final rulings in favor of the state in the case, but so far Conley’s decisions have favored critics of the law.
Last week, two doctors with an abortion provider in Milwaukee said they had attempted to obtain admitting privileges and been denied.
Larry Dupuis and Renée Paradis, attorneys for Affiliated Medical Services, on Friday submitted to the court letters from hospitals within a 30-mile radius of the Milwaukee clinic denying doctors Dennis Christensen and Bernard Smith admitting privileges.
The trial concerning the 2013 Wisconsin law requiring those credentials wrapped up on May 30. If reinstated, the admitting privileges law could result in the closing of the Affiliated clinic, one of four in the state and the only one that provides abortions for pregnancies longer than 18 weeks.
Conley requested on the trial’s final day that Dupuis and Paradis provide correspondence verifying that Christensen and Smith had been denied admitting privileges.
State Department of Justice spokeswoman Dana Brueck said the Supreme Court’s decision not to hear the appeal had more to do with the justices’ limited capacity than disinterest in the case.
“The Supreme Court’s action, although disappointing, is not surprising considering the very small number of cases the Supreme Court grants for review,” Brueck said. “The attorney general had hoped that the Supreme Court would address some of the preliminary issues presented by this case.”
Brueck said Van Hollen will continue to defend the law. Many states have passed laws like it, she said.
Dupuis said he wasn’t sure why the state filed an appeal with the Supreme Court when Conley is due to decide very soon, but said he felt relieved the Supreme Court did not take the case.
“We’re glad we’re not fighting on two fronts at the same time,” the attorney for Affiliated Medical Services said.
Decision sheds little light
Carl Tobias, a professor at the University of Richmond School of Law, said the Supreme Court’s decision not to hear the appeal provides little information. Tobias said the court may have found the requirements for imposing a stay on the law put forth by Conley and the 7th Circuit sufficient, but the decision itself does not reveal that theory. Tobias said he believes the admitting privileges requirement is unconstitutional.
“I don’t think you can tell much from what happened today about what the justices were thinking,” Tobias said. “All it is is a list of the order and it says ‘denied.’”
The lawsuit was brought by Affiliated and Planned Parenthood, which runs the state’s other three abortion clinics.
Letters from Wheaton Franciscan Healthcare, Aurora Health Care and Froedtert Health Inc. say Christensen and Smith do not qualify for admitting privileges because in their clinic the two are not subject to review by a professional board to make sure their practices meet hospital standards.
Additionally, a letter written by Aurora Health Care’s legal representative, Jane Appleby, says the doctors said they intend to treat only a few patients in the hospital setting and would not meet the hospital’s annual quota of at least 20 patients.
Paradis said the doctors applied for privileges with Aurora and Froedtert although they knew they failed to meet certain requirements. The doctors did not formally apply with Wheaton Franciscan because they knew the hospital required physicians to sign pledges saying they would not advertise abortion services. Wheaton Franciscan sent a letter saying the two would be denied privileges for other reasons as well.
“Each doctor is categorically ineligible due to lack of inpatient care and peer review,” Paradis said. “They still made the effort where they felt they had previous relationships or other factors that they thought could grant them an exception.”
Christensen and Smith did not apply to Waukesha Memorial Hospital and Columbia St. Mary’s Hospital because they knew they had similar bylaws requiring inpatient clinical activity that neither doctor had due to the outpatient setting of their clinic.
“They didn’t go through the empty gesture of filling out applications at hospitals where they knew they would be rejected,” Paradis said.
Linda S. McPike, a legal representative of Froedtert, wrote in a letter that the hospitals “do not deny admitting privileges based on a physician’s provision of outpatient abortion services.”
McPike also said in her letter that the hospitals do not have a category of physician that would solely allow the doctors to admit patients that require care in addition to that which they receive in another setting. She said Christensen has “refer and follow staff membership rights,” which allow access to inpatient care for patients. McPike said Smith also could apply for those membership rights.
Conley is expected to rule this summer. His decision will almost certainly be appealed.