So-called TRAP laws whose effects are to deny women access to legal abortion services have become legion in a variety of states. In WI, one such law requiring abortion providers to have admitting privileges at a hospital within a 30 mile radius of the clinic where the abortion was performed was signed on Friday, July 5, 2013, and was to have gone into effect the following Monday! A federal district judge issued a temporary injunction to prevent the state from enforcing the law until a trial on the merits could be held. The state immediately appealed to the 7th Circuit Court of Appeals to try to get the injunction lifted.
Today the US Court of Appeals for the 7th Circuit affirmed the preliminary injunction The decision does not (yet) strike down the law but it does prevent the state from enforcing the law until the case can be heard in the district court. Even better, the opinion by Posner, Manion, and Hamilton appears to provide some pretty good guidance to plaintiffs.
That said, the opinion (see https://aclu-wi.org/...) makes it clear that the appellate judges are highly skeptical about the law's purpose:
The district judge said in a footnote in his opinion that while he would “await trial on the issue, … the complete absence of an admitting privileges requirement for clinical [i.e., outpatient] procedures including for those with greater risk is certainly evidence that 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” (emphasis in original). A fuller enumeration of considerations based on purpose would include the two‐day deadline for obtaining admitting privileges, the apparent absence of any medical benefit from requiring doctors who perform abortions to have such privileges at a nearby or even any hospital, the differential treatment of abortion vis‐à‐vis medical procedures that are at least as dangerous as abortions and probably more so, and finally the strange private civil remedy for violations: The father or 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 violated the admitting‐privileges provision. Wis. Stat. § 253.095(4)(a). Yet if the law is aimed only at protecting the mother’s health, a violation of the law could harm the fetus’s father or grandparent only if the mother were injured as a result of her abortion doctor’s lacking the required admitting privileges. But no proof of such injury is required to entitle the father or grandparent to damages if he proves a violation and resulting emotional or psychological injury to himself.
See more after the squiggle.
I'm not a lawyer but it seems to me that the authors of this opinion are very clear about the hill the defendant in this case is going to have to climb to prevail at trial. For example, the judges note that enforcement of the law would close two of the four clinics providing abortions in WI and bar half the doctors working at a third clinic from performing abortions. In short, they write, immediate enforcement of this law will result in "closure of two and a half of the state's four abortion clinics" at least until doctors obtain admitting privileges. And the opinion notes that most hospitals are decidedly unlikely to grant such privileges.
But the most potent part of the opinion, to me at least, comes in this paragraph:
Some patients will be unable to afford the longer trips they’ll have to make to obtain an abortion when the clinics near them shut down—60 percent of the clinics’ patients have incomes below the federal poverty line. One of the clinics that will close is Planned Parenthood’s clinic in Appleton, which, as shown in the accompanying map, is in the approximate center of the state. The remaining abortion clinics are in Madison or Milwaukee, about 100 miles south of Appleton. A woman who lives north of Appleton who wants an abortion may (unless she lives close to the Minnesota border with Wisconsin and not far from an abortion clinic in that state) have to travel up to an additional 100 miles each way to obtain it. And that is really 400 miles—a nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children. For Wisconsin law requires two trips to the abortion clinic (the first for counseling and an ultrasound) with at least twenty‐four hours between them. Wis. Stat. § 253.10(3)(c). When one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered.
I should add that Judge Manion concurred in the decision to affirm the injunction but wrote an extensive opinion disputing most of the reasoning in the majority opinion. He argues, for example, that the statute in question has a rational basis and that even though some doctors might no longer be able to perform abortions at clinics in WI, the reduction in abortion services will not constitute an undue burden on women seeking those services. The distances that they might have to travel and the expense of that travel together with the necessity to make the trip twice or stay in a hotel near the clinic to observe the 24-hour waiting period are merely "inconvenient" for some women. Let's hope Judge Manion's views do not prevail, either at trial or on subsequent appeal.