### I n the 

# United States Court of Appeals For the Seventh Circuit

____________________

No. 15

- 1736
P LANNED P ARENTHOOD OF W ISCONSIN , I NC ., et al ., Plaintiff s

- Appell ee s ,

v.

B RAD D. S CHIMEL , Attorney General of Wisconsin, et al ., Defendant s

- Appell ant s

.

____________________ Appeal from t he United States District Court for the Western District of Wisconsin

. No. 3: 13

- cv
- 00 465

- wmc

— William M. Conley, Chief Judge

.

____________________ A RGUED O CTOBER 1, 2015

— D ECIDED N OVEMBER 23, 2015

____________________

Before P OSN ER, M ANION , and H AMILTON , Circuit Judges

. P OSNER, Circuit Judge

. On July 5 , 2013 , the Governor of Wisconsin signed into law a statute that the Wisconsin legi slature had passed the previous month . S o far as r e lates to this appeal the statute prohibits a doc tor, under threat of heavy penalties if he defies the prohibition, from perform ing an abortion (and in Wisconsin only do c tors are allowed to perform abortions , Wis. Stat. § 940.15(5) ) unless he has a d-2 No. 15

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mitting privileges at a ho s pital no more than 30 miles f rom the clinic in which the abortion is performed. Wis. Stat. § 253.095 (2)

. A doctor granted admitting privileges by a hospital b ecomes a member of the hospital’s staff and is autho r ized to admit patients to that hospital and to treat them there; that is
t he meaning of “a d mitting 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 ho s pital that has an emergency room is obliged to admit and to treat a patient requiring emergency care even if the patient is u ninsured. 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 tran s ferring the patient from the abortion clinic to a nearby hospital, which could be impo r tant if the patient would be better served elsewhere in a ho s pital than the emergency room

— though in that event the emergency room doctors would send her to the pa rt of the hospital in which she could best be served

. Planned Parenthood of Wisconsin and Milwaukee Wo men’s Medical Services (also known as Affiliated Medical Se rvices , commonly referred to as AMS )

— which operate the only four abortion clinics in Wisconsi n

— joined by two do ctors e m ployed by Planned Parenthood , filed suit on the day the governor signed the statute into law . The plaintiffs cha llenged the statute’s constitutio n ality under 42 U.S.C. § 1983 , which pr o vides a tort remedy for violations of federal law by
state off i cials or other state employees . The plaintiffs sought and obtained first a temp o rary restraining order and then a preliminary injunction against enforcement of the statuteNo. 15

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(not the entire statute, just the provision regarding admitting pr ivileges for abortion doctors

— but for simplicity we’ll ge nerally call that pr o vision “the statute”). The defendants (the Wisconsin attorney general , Wisco nsin district a ttorneys, the Wisconsin Secretary of the D epartment of Safety and Professional Services , and members of the state’s Med i cal 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 Ho l len , 738 F.3d 786 (7th Cir. 2013). That cleared t h e way for the district judge to conduct a full trial , which he did . The trial culminated in his granting a permanent injun ction against e n forcement 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 abo r tion. 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 , p e riod , in violation of constitutional rights recognized by the U.S. S u preme Court

. There might appear to be a question about standing to sue, since the principal victims of the statute are women d esiring abo rtions and none of them is a plaintiff. But we e xplained in our opinion upholding the p reliminary injunction that the plaintiffs have standing . T he c ases are legion that allow an abo r tion provider, such as Planned Parenthood of Wisconsin or AMS , to sue to enjoin as violations of federal law (hence lit i gable under 42 U.S.C. § 1983) state laws that restrict abortion. These cases emph a size not the harm to the abortion clinic of making abortions very difficult to obtain4 No. 15

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legally, though that might be an alternat ive ground for re cognizing a clinic’s standing, but rather “ the confidential n ature of the phys i cian

- patient relationship and the difficulty for patients of directly vindicating their rights without co mpromi s ing their privacy, ” as a result of which “ the Su preme Court has entertained both broad f a cial challenges and pre

enforcement as

- applied challenges to abortion laws brought by physicians on behalf of their p a tients

. ” Isaacson v. Horne , 716 F.3d 1213, 1221 (9th Cir. 2013); see also Richard H. Fa llon, Jr., “As

- Applied and Facial Cha l lenges 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 affec ted by the Wisconsin statute

. If one of the abo r tion clinics in the state close s, placing increased demand on the others, some women wanting an abortion will experience delay in obtaining, or may even be unable to obtain, an abo r tion, yet not realize that the new law is likely to have be en the cause. Those women would be unlikely to sue. Other women might be able to find an abor tion doctor who had admitting priv ileges at a nearby hospital, yet still incur costs and delay b ecause the law had reduced the number of do c tors who are allowed to perform abortions

. Suits to recover the costs , i ncluding some quantification of the cost of delay , would be awkward. A suit by clinics and doctors seeking injunctive relief is more feasible and if successful gives the women what they want. If the clinics and doctors win, the p a tients win. And finally the Supreme Court held in Doe v. Bolton , 410 U.S. 179, 188 (1973) (the companion case to Roe v. Wade , 410 U.S. 113 (1973) ), that abortion doctors ( remember that theNo. 15

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two individual plaintiffs in this case are d octors e m ployed by abortion clinics) have first

- party standing to cha l lenge laws limiting abortion when, as in Doe and the present case as well, pena l ties for violation of the laws are visited on the doctors. Wis. Stat. §§ 253.095(3), (4); see Planned Pare n t hood of Southeastern Pen n sylvania v. Casey , 505 U.S. 833, 903

– 04, 909 (1992) (plurality opinion) ; Planned Parenthood of Central Mi ssouri v. Da n forth , 428 U.S. 52, 62 (1976); Karlin v. Foust, 188 F.3d 446, 456 n. 5 (7th Cir. 1999); Planned Parenthood of W i sconsin v. Doyle , 162 F.3d 463, 465 (7th Cir. 1998). Although signed into law on a Friday (July 5, 2013) , Wi sconsin’s statute required compliance

— the possession, by every doctor who performs abortions, of admitting privile ges at a hospital within a 30

- mil e radius of each clinic at which the doctor per forms a bortions

— by the following Sunday (July 7 , 201 3 ) . 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 a dmitting 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 admi tting privileges and often much longer. It took ten month s for one of the individual plaintiffs to obtain admitting privi le ges

. It took eight months for the other one to obtain admi t ting privileges at one hospital and nine months for her to o b tain them at another hospital

. Moreover, hospitals are pe r mitted rathe r than req uired to grant such privileges , and some may be reluctant to grant admitting privileges to abo r tion doctors because there is great hostility to abortion in Wisconsin, though as we’ll see hospitals have now granted such priv ileges to a number of t he state’s abortion do c tors

.6 No. 15

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States that have passed laws similar to Wisconsin’s have allowed much longer implementation time than a wee k end

— for example, Mississippi allowed 76 days from statutory a pproval date to effe c tive date , Alabama 83 days, and Texa s 103 days . 2012 Miss. Gen. Laws 331 (H.B. 1390), e n joined in Jackson Women ’ s Health Org anization v. Cu r rier, 760 F.3d 448 (5th Cir. 2014) ; 2013 Ala. Legis. Serv. 2013

- 79 (H.B. 57), e njoined 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), u p held 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 Wi sconsin legislatur e weeks rather than days before it took e ffect, but weeks aren’t enough time in which to get admitting priv i leges, 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 wh ether they’d be r equired to o b tain such privileges

. As of July 7 none of the doctors at either the AMS clinic (in Milwaukee) or Planned Pa r enthood’s Appleton clinic had admitting privileges at a hospital within the required 30

- mile distance from the clinic , and neither did two of the do ctors at Planned Paren t hood’s Milwaukee clinic

. On the date of oral argument of the appeal from the grant of the prelim inary injunction

— almost five months after the law would have ta k en effect had it not been for that injunct ion and the temporary restraining order that preceded it

— the applic ation of one of the doctors for admitting privileges had been denied and none of the applications of the other s had been granted. Had enforcement of the statute not been stayed, two of the state’s four abortion clinics

— the one in A p pleton (the only one north of Milwaukee) and one of the MilwaukeeNo. 15

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clinics

— would have had to shut down because none of their doctors had admitting privileges at a hospital within the prescribed radius ; and the capa city of a third clinic to pe rform abortions would have shrunk in half.
The state points out that abortion doctors have now had more than two years since the statute was enac ted in which to obtain admitting privileges . B ut the legislature’s i n tention to imp ose 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 pr e venting abortions that women have a constitutional right to obtain. The state tel ls us that “there is no evidence the [Wisconsin] Legislature knew AMS physicians would be u nable to comply with the Act.” That insults the legislators’ i ntelligence. 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 cli n ics would have had to close , and months would have passed before they could reopen. The fixing of such a short deadline for obtaining admi tting privileges, a deadline likely to deny many wo men the right to an abortion for a period of months while the abo rtion doctors tried to obtain those privileges , could be just ified consistently with the Supreme Court’s abortion juri sprudence only if there were reason to believe that the health of women w ho have abortions is endangered if their abo rtion doctors don’t have admitting privileges. T he district court correctly found that t here is no reason to believe that. A woman who experiences complications from an abo r tion (either while still at the clinic where the abortion was pe rformed or at home afterward) will go to the nearest ho s pital ,8 No. 15

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which will treat her regardless of whether her abortion do ctor has a d mitting privileges. As pointed out in a brief filed by the American College of Obstetricians and Gy necologists, the American Medical Association, and the Wisconsin Med ical Society, “it is a c cepted medical practice for hospital

based physicians to take over the care of a patient and whether the abortion pr o vider has admitting privileges has no impact on the course of the patient’s treatment.” As Dr. Se r dar Bulun, the expert witness appointed in this case by the district judge under Fed. R. Evid. 706, tes tified , the most important factor would not be admitting privileges, but whether there was a transfer a greement between the clinic and the hospital . As we’ve said, abortion doctors in Wisco nsin are required to have such transfer agreements

. See Wis. Admin. Code Med. § 11.04 (1) (g). T he trea t ing doctor at the hospital probably would want to consult with the d octor 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 a t tenuate s the need for abortion doctors to have admitting privileges

. Two studies cited in the amicus curiae brief filed by the Amer i can College of Obstetricians and Gynecologists et al. and credi ted by the district judge

— Tracy A. Weitz et al., “Safety of Aspiration Abortion Performed b y Nurse Practitioners, Ce rtified Nurse Midwives, and Physician Assistants Under a Califo r nia Legal Waiver,” 103 Am. J. Public Health 454, 457

– 58 (2013), and Kelly Cleland et al., “Significant Adverse Events and Outcomes After Medical Abortion,” 121 Obste tr ics & Gynecology 166, 169 (2013)

— find that complic a tions occur in only 1 out of 112 physician

- performed first

trimester aspiration abortions (the most common type ofNo. 15

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surgical abortion), and that 94 percent of those complications

a re “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 Wisco nsin figure for 2013 is even lower: 1 complication per 404 abortions of all types. And fin ally only 1 in 1 9 37 physician

conducted aspiration abortions result in major complications (a category which includes hospital admissions) , and 1 in 1 732 medical abortions requir e hosp i tal admission . Weitz et al., supra , at 456, 458

– 59 ; Cl e land et al., sup ra , at 169 tab. 2

. These studies have found that the rate of complications is below 1 percent; in the case of complications requiring ho spital admissions it is one

- twentiet h of 1 percent

. T he rate of complications for second

- trimester surgical abor tions is slightly higher

— 1.3 percent . A nna C. Frick et al., “Effect of Prior Cesarean Delivery on Risk of Second

- Trimester Surg ical Abortion Compl i cations,” 115 Obstetrics & Gynecology 760 (2010). In the five

- year per i od 2009 to 2013, only 12 women who had abortio ns at clinics in Wisconsin experienced co mplic a tions requiring transfer from clinic to hospital. Fifteen add i tional women who had received abortions at a Planned Parenthood clinic and left the clinic without apparent co mplic a tions later sought treatment at a hospital

. T he record does not contain a comparable figure for the AMS clinic. There is no evidence that any of these women received ina dequate hospital care because the doctors who had pe r formed the ir abortions lacked admitting priv i leges.
One doctor wi th extensive experience in obstetrics and gynecology told about a case in which a woman with a co mplication from an abortion might , he thought , have avoided a hysterectomy if her abortion doctor had called the hospital10 No. 15

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or had had admitting privileges

. That is the only e v idence 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 releva nt expertise, e m ployed by the hospital to which she’s taken. And the example doesn’t a c tually have anything to do with admitting privileges. The abortion do c tor didn’t need admitting privileges at a hospital in order to call an amb ulance to take his patien t to the nearest hospita l , or to co mmunicate with the treating doctor at the hospital

— neither of which he did. As the district judge found, in the case of abo rtion “any benefit of admitting privileges in terms of contin uity of care is i n crementally small.”
And as noted, Wi sconsin abortion clinics

— uniquely, it appears, among outpatient providers of medical services in Wisconsin

— are required by law to adopt transfer prot o cols intended to assure prompt hospitalization of any abortion patient who experiences co mplications ser i ous 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 ad equately by the hospitals in the state . And no docume ntation 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 ev idence that had been submitted to the legislature had come from a doctor representing the Wi s consin Medical Society

— and s he opposed requiring that abortion doctors obtain a d-No. 15

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mitting privileges. The only testimony presented to the legi slature that admi t ting privileges are important to continuity of care was presented by a repr e sentative of Wisconsin Right to Life who happens not to be a doctor. Indeed the legisl ative deliberations virtually ignored the provision concerning admitting privileges, focusing instead on an other p rov ision

— a requirement not challenged in this suit that a wo man seeking an abortion obtain an ultrasound examin a tion of her uterus first (if she hadn’t done so a l ready) , which might induce her to change her mind about having an abortion. Wis. Stat. § 253.1 0(3)(c)(1)(gm). No other procedure performed outside a hospital , even
one as invasive as a surgical abortion, is required by Wisco nsin law to be performed by doctors who have admitting privileges at hospitals within a specified r a dius of where the procedur e is performed

. And that is the case even for proc edures performed when the patient is under general anesth esia , and even though more than a quarter of all surgical o perations in the United States are now performed outside of hospitals

. Karen A. Cullen et al., “Amb u latory Surgery in the United States , 2006,” Centers for Disease Control and Preve ntion: N a tional Health Statistics Reports No. 11 , Sept. 4, 2009 , p. 5, www.cdc.gov/ nchs/ data/ nhsr/ nhsr011.pdf (visited Nov. 21 , 2015 , as w as the other website cited in this opinion )

. And
t hat is true even for such gynecological procedures as dia gnostic dilation and curettage (D&C) (removal of tissue from the inside of the uterus) , h ysteroscopy (endoscopy of the uterus) , and surgical completion of miscarriage (surgical r emoval of fetal tissue remaining in the uterus after a misca rriage , which is a spontaneous abortion rather than one me dically induced )

— procedures medically similar to abo r tion

.12 No. 15

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Dr. John Thorp , Jr., a n ex p ert witness for the defendants, testified that abortion is more dangerous than D&C or hy steroscopy because there is increased blood flow during a pregnancy . B ut one of the p laintiffs’ expert s , Dr. Douglas Laube , counter ed that a pregnant uterus responds better to treatments to stop bleeding, making the risk of the proc edures 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 showe d how rare major complications of both hysteroscopy and second

- trimester surgical abortion are. See M orris Wortman et al., “Oper a tive Hysteroscopy in an Office

- Based Surgical Setting: R e view of P a tient Safety and Satisfact ion in 414 C ases,” 20 J

. Minimally Invasive Gynecology 56 (2013); T. C. van Kerkvoorde et al., “Long

- term Complications of Office Hy s teroscopy: Analysis of 1028 Cases,” 19 id

. 494 (2012) ; Frick et al., supra

. Dr. Thorp acknowledged , moreover, that admitting priv i leges are no more important for abortion s than for other outpatient procedures . Yet Wisconsin appears to be i n diffe rent to complications of any other outpatient procedures , even when they are far more likely to produce complication s than abortions are

. For example, the rate of compl ications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of compl i cations requiring hospitalization from first

- trimester abortions

. See Cynthia W. Ko et al., “Serious Co m plications Within 30 Days of Screen ing and Surveillance Colonoscopy Are Unco mmon,” 8 Clinical Gastroenterology & Hepatology 166 , 171

– 72 (2010)

. Operative colonoscopy has an even higher rate of m ajor complications , making it riskier than even se c ond

trimester abortions. See J erome D

. Waye et al., “Colonosc opy: A Prospective Report of Complications,” 15 J. ClinicalNo. 15

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Gastroe n terology 347 (1992). It is conceivable that because of widespread disapproval of abortion, abortions and their compl i cations may be underreported

— some women who experience t hem and are hospitalized may tell the ho s pital staff that the complications are from a misca r riage. But there is no evidence of significant or wide s pread underrepor t ing

. The defendants argue that obtaining admitting privileges operates as a kind of Good Ho usekeeping Seal of A p proval 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 Ce nter of West County, Inc. v. Webster, 871 F.2 d 1377, 1378

– 81 (8th Cir. 1989). Several abortion doctors in Wisconsin who lack admitting privileges at hospitals within the prescribed rad ius have them

— their Good Housekeeping Seals of Appro val

— at more distant hospitals from their clinic yet are not e xcus ed by the statute from having to obtain the identical pri vileges from a hospital within the 30

- mile radius

. The defendants argue that admitting privileges improve continuity of care . B ut n othing in the statute requires an abortion doctor who has admitting priv i leges to care for a patient who has complications from an abortion. He doesn’t have to a c company her to the hospital, treat her there, visit her, call her, etc. The statute also does not distinguish b etween surg i cal and medical abortions. The latter t erm refers to an abortion induced by pills given to the patient by her do c tor: she takes one pill in the clinic, goes home, and takes an add i tional pill or pills one or two days later to complete the pr o cedure. Her home may be far from any hospital that is within 30 miles of her doctor’s clinic, but close to a hosp ital farther from the clinic . If she calls an ambulance the pa r-14 No. 15

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amedics are likely to take her to the nearest hospital

— a ho spital at which her abortion doctor is unlikely to have admi tting privileg es. Likewise in the case of surgical abortions when complications occur not at the clinic during or imm ediately after the abortion but after the patient has r e turned home . B ecause of distance , she may lack ready access to hospitals near the clinic at which the abortion was pe rformed

. She may live near a hospital , but not a hospital at which the do c tor who performed her abortion has admitting priv i leges. We can imagine an argument that what Wisconsin did in this case was to make the regulation of the treatm ent of abo rtion complications simply the first step on the path to a reg ulation of all potentially serious complications. But the d efendants have not argued this; nor is it plausible that the state would begin such an effort with a procedure that has a

ver y low rate of serious complications. T he statute has been on the books for more than two years, yet there is no indic ation that the legislature has given any consideration to r equiring admitting privileges for any doctors other than abo rtion providers

. Th e district judge had remarked in granting the prelim inary injunction that while he would “await trial on the issue, ... the complete abs en ce of an admitting privileges requir ement for [other] clinical [i.e., outpatient] procedures inclu ding for those with gr eater risk [than abortion] is certainly e vidence that [the] Wisconsin Legisla ture’s only purpose in its enactment was to restrict the availability of safe, legal abo rtion in this State, particularly given the lack of any demo nstrable med i cal benefit for it s requirement either present ed to the Legislature or [to] this court

. ” Planned Parenthood ofNo. 15

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Wisco n sin, Inc. v. Van Hollen , No. 13

– cv

– 465

– wmc, 2013 WL 3989238, at *10 n. 26 (W.D. Wis. Aug. 2, 2013) (emphasis in original)

. Confirmatory evidence is the statu tory two

- day dea d line for obtaining admitting privileges in order to be allowed to perform abortions , though that deadline is of course no longer ope r able

. And we can’t forbear to mention the weird private civil remedy for violations : T he father , or a gran dparent , of the “aborted unborn child” is entitled to o btain damages, including for emotional and psychological distress, if the abortion was performed by a doctor who lacked admit ting priv i leges

. Wis. Stat. § 253.095(4)(a). Were the law aimed at protectin g the mother’s health, as the state contends, a viol a tion 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

. B ut the statute requires no proof of any injury of any kind to the mother to entitle the fath e r 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 S u preme Court, a s tatute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the e nacting state’s constitutional a u thority

. T he c ourts have “an independent constit u tional duty to review [a legislature’s] factual findings wher e con stitutional rights are at stake. ” Gonzales v. Carhart, 550 U.S. 124, 1 63

– 65 (2007). The Wisco nsin statute does not “further[] the l e gitimate interest” of the state in advancing women’s health, and it was not “reason able for [the legisl a ture] to think” that it would

. Id

. at 146, 160.
Were it not for the injunction s issued by the district court (and the temporary restraining order that preceded them) ,16 No. 15

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the statute would have substantially curtail ed the availabi lity of abortion in Wisconsin , without confer ring an offsetting benefit (or indeed any benefit) on women’s health

. Virtually all abo r tions in Wisconsin are performed at the four abortion clinics (the three Planned Parenthood clinics and the AMS clinic) ; no other clinics perform abortions , and hospita ls pe rform only a small fraction of the abortions pe r formed in the
state . With the preliminary and now the permanent injun ction having lifted the deadline for obtaining admitting priv ileges, doctors at the three Planned Parenthood abortion cli nics (Milwauk ee, Madison, and Appleton) have been able to obtain admitting privileges at nearby ho s pital s . But the two doctors at the fourth clinic, AMS, have been un able to obtain such privileges at any ho s pital even though 17 hospitals are within a 30

- mile r a dius 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 co ns ists of performing abortions and they therefore lack recent experience in performing inpatient medical proc e dures for which hospitals would grant admitting privileges . N or is any of their clinical practice peer reviewe d, which hospitals also make a conditi on of granting admitting priv i leges. One of the doctors couldn’t even obtain an application for admi tting privileges at Aurora

- Sinai Hospital , b e cause he couldn’t show that he’d “treated patients in a hospital or a p propriate outpatient setting in which the Practitioner’s care was su bject to evaluation through peer review acceptable to the Me tro Credentials Committee, in the previous twelve (12) months.” Froedtert Hospital likewise rejected his applic ation, because he provide d neither “evidence of recent (wi t h-No. 15

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in the past 2 years) inpatient activity” nor “an evalu a tion of [his] ability to provide care for patients in the inpatient env ironment.” The other AMS doctor was also rejected by Aur ora

- Sinai , which told him he was ineligible to obtain full a dmit ting pri vileges because he would be un able to a d mit the required minimum of 20 patients per year , and that he could not obtain courtesy privileges (which differ from full priv ileges in allowing a doctor to admit only a very few patients) without already having sta ff privileges at another hospital

. Another hospital, St. Joseph’s Comm u nity Hospital of West Bend, requires applicants for o bstetrics/gynecology admi tting privileges to have delivered 100 babies in the pr e vious two years , by which of course they mean live babies; and d elivering live babies is not what abortion doctors do

. Moreover, all the hospitals require , as a condition to o btaining admitting privileges, demonstrated compe tence in performing the particular procedures that the doctor seeks to pe r form at t he hospital on patients that he admits

. Although a defense expert from C o lumbia St. Mary’s Hospital testified that the hospital would evaluate a physician’s quality wit hout requiring a r e cord of inpatient care, he acknowledged that a doctor seeking admitti ng privileges would have to demonstrate comp e tence to perform the specific procedures for which he sought the privileges. H ospitals are entitled to d e mand proof that doctors seeking to work at the hospital be able to pe r form the procedures that they want t o perform there

. But to co n dition the grant of admitting privileges on being qualified to perform procedures that AMS’ s abortion doctors never perform is to bar them from performing abo rtions

.18 No. 15

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So , as the district judge found, if the statute is valid ne ithe r 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 r adius of the clinic. But it is difficult to hire such doctors, not only because it’s difficult for abortion doctors to obtain a dmitting privileges (esp e cially within a prescribed radius of the clinic) but also because of the vilification, threats, and sometimes violence directed a gainst 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 ab ortions. 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

. H ospitals generally require that a doctor, to mai n tain his admitting privileges, be responsible for admi tting a specified minimum number of patient s annually . B ecause of the very low rate of complications from abortion s that require hospitalization, the required quotas may b e di fficult to meet

. O ne 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 wo men in the Milwaukee area who decide to have an abo r tion, in whic h event the demise of AMS would be no big deal . Not

so. O f some 6462 abortions performed in Wisco n sin in 2013 (the latest year for which there are complete fi g ures), 58 0 0No. 15

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were performed in abortion clinics in the state (see Wisco nsin Department of Health S ervices, “Reported Induced Abortions in Wisconsin, 2013 , ” Aug. 2014,

www .dhs.wisconsin. gov/pub lica tions /p4 /p45360

- 13.pdf), and 2500 of those were performed by A M S

. ( Presumably the 662 abortions not performed in abortion clinics were pe rformed in hospitals

. )
The Planned Parenthood clinic in Milwaukee would have to expand s taff and facilities to a c commodate 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 an d are seeking abo rtions) , and this would be costly and could even be imposs ible given the difficulty of recruiting abortion doctors. The district judge accepted uncontradicted testimo n y that Planned Parenthood could not absorb the additional d emand for abo rtions , and the result (of demand exceeding supply) would be an 8 to 10 week delay in obtaining an abortion

. Some women would have to for go first

- trimester abortions and instead get se c ond

- trimester ones , which are more expensive and present greater health risks. Other women would be unable to obtain any abortion, b e cause the delay wou ld push them past the 18.6

- week s
- LMP ( “last menstrual period , ” which is likely to precede conce p tion by a couple of weeks ) deadline for the Planned Parent hood cli nics’ willing ness to perform abor tion s

. O nly AMS will pe rform abortions beyond that limit (up to 22 and occ a sionally 24 weeks of pregnancy ) . Women seeking lawful abor tions that late in their pregnancy , either b e cause of the waiting list or because they hadn’t realized their need for an abortion

sooner , w ould be unable to obtain abortions in Wisconsin

.20 No. 15

- 1736

AMS perform s about 250 late

- term abortions each year (and that’s without the additional p a tients 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 pe r forms such abortions. Although the state points out that these late

- term abortions currently constitute fewer than one pe r cent of the abortions performed in the state , “the analysis does not en d 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 (pl urality opinion)

. For the longer the waiting list for an abo rtion, the more women who want to have early

- term abo rtions will perforce end up having late

- term ones, which are more da n gerous

. No problem, argues the state, since Chicago is only 90 miles from Milwaukee , and there is at least one clinic in Ch icago that will perform abortions after 1 9 weeks. The logic of the state’s position is that it could forbid both abortion cli nics in Milwaukee to perform abortions on an y one living in that city , given that the Chicago clinics are only about 90 miles away (and one clinic , in the northern suburbs o f Ch icago , 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 propos ition that the harm to a constitutional right [can be] measured by the extent to which it can be exercised in another jurisdiction ... [is] a profoundly mistaken assumption. In the First Amendment context, the S u preme Cour t long ago made it clear that “ one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea thatNo. 15-1736 21

it may be exercised in some other place .” Schad v. Borough of Mt. Ephraim , 452 U.S. 61, 76 –77 (1981), quoting Schneider

v. New Jersey , 308 U.S. 147, 163 (1939). The same principle applies here. It ’ s hard to imagine anyone suggest ing that Chicago may prohibit the exercise of a free

- speech or rel igious

- liberty right within its borders on the ground that those rights may be freely enjoyed in the suburbs.
Or as the Supreme Court put it in Missouri ex rel. Gaines v. Ca n ada , 305 U.S. 337, 350 (1938), the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as gover nmental entities

— each responsible for its own laws esta blishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, an d no State can be excused from performance by what a n other State may do or fail to do.
See also Jac kson Women ’ s Health Organization v. Currier, supra , 760 F.3d at 457–58. It’s true that we said in A Woman ’ s Choice –E ast Side Women ’ s Clinic v. Newman , 305 F.3d 684, 688 (7th Cir. 2002), that the undue burden sta n dard 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 availabil ity of abortion services across state lines. Instead the
court was worried that district judges in different states might reach different conclusions about the constit u tionality of nearly identical statutes.22 No. 15

- 1736

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 Gre y hound ticket . But more than 50 percent of Wisconsin women seeking abortions have incomes below the federal poverty line and many of them li ve 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 Ch icago should they not feel up to an immediate return to Wi sconsin after the abortion, may be prohibitively expe n sive. The State of Wi s consin 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 tr ial , 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 require s not only reason to believe (here lac k ing , as we have seen) that the medical grounds are valid, but also reason to believe that the restrictions are not di sproportionate , in their effect on the right to an abor tion, to the medical benefits that the restrictions are believed to co nfer 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 (pl urality opinion); Gonzales v. Carhart, supra , 550 U .S. at 146, 15 7

– 5 8; Ste n berg v. Carhart, 530 U.S. 914, 930 , 938 (2000)

. To determine whether the burden imposed by the stat ut e is “undue” (excessive), the court must “weigh the burdens against the state’s justification, asking whether and to what extent th e challenged regulation actually advances the state’sNo. 15

- 1736 23

inte r ests. If a burden significantly exceeds what is necessary to advance the state’s interests, it is ‘un due , ’ ” Planned Parenthood Ar i zona, Inc. v. Humble , 753 F.3d 905, 913 ( 9th Cir. 2014) , which is t o say unconstitutional . The feebler the med ical grounds (in this case, they are nonexistent ) , the likelier is the burden on the right to abortion to be disproportionate to the benefits and therefore e x cessive

. There are those who would criminalize all abor tions , 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 nece s sary to protect the lif e or (in some versions) the health of the pre gnant woman . But what makes no sense is to abridge the co nstitutional right to an abortion on the basis of spurious co nte ntions regarding women’s health

— and the abridgment challenged in this case would actually endanger women’s health . It would do that b y reducing the number of abortion doctors in Wisconsin, thereby in creasing the wai t ing time for obtaining an abortion, and that increase would in turn co mpel some women to defer abo r tion to the second trimester of their pregnancy

— which the stu d ies we cited earlier find to be riskier than a first

- trimester abortion

. For abortions pe rformed in the first tr i mester t he rate of major complications is 0.05

- 0.06 percent (that is, between five one

- hundredths of 1 percent a nd six one

- hundredths of 1 percent) . I t is 1.3 pe rcent for second

- trimester abortions

— between 22 and 26 times higher

. The burden on abortion imposed by the Wisconsin sta tute is greater than in the cases in which the Fourth and Fifth Circuits have upheld si milar admitting privileges requir e-24 No. 15

- 1736

ments , b e cause the plaintiffs in those cases failed to satisfy the courts that the challenged statutes would lead to a su bstantial decline in the availability of abortion

. In both Planned Parenthood of Greater Texas Surg i c al Health Services v. Abbott, supra , 748 F.3d at 597

– 98 , and Greenville Women’s Cli n ic v. Bryant, 222 F.3d 157 , 162, 170 (4th Cir. 2000) , the courts decided that the evidence compelled only a concl usion that one clinic in each state would close as a result of the
statute and each of those two clinics performed only a small propo r tion of its state’s abortions

. The Fifth Circuit also upheld another requirement in the

same statute

— that abortion clinics must meet the sta n dards for ambulatory surgical centers

— de spite the evidence that as a result of this requir e ment only eight clinics would survive out of the more than forty in existence when the statute was
e n acted

. Whole Woman ’ s Health v. Cole , 790 F.3d 563, 578 (5th Cir. 2015) , cert. granted, 2015 WL 5176368 ( Nov. 13, 2015)

. The court remarked the absence of evidence that the remai ning clinics could not expand their capacity to co m pensate for the closing of more than three

- fourths of them, id. at 59 0 , al though one wouldn’t think it necessary to p a rade evidence that the remaining clinics would find it e x tremely difficult to quadruple their capacity to provide abo r tions , which would require , in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clini cs, extensive physical enlargement to house add itional patients and do c tors.
A great many Americans, including a number of judges , legislators, governors, and civil servants, are passio n ately opposed to abortion

— as they are ent i tled to be. But persons who have a sophisticated understan d ing of the law and ofNo. 15

- 1736 25

the Supreme Court know that convincing the Court to ove rrule Roe v. Wade and Planned Parenthood of Southeastern Pen nsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seek ing to discourage abortion s by ma king it more difficult for women to obtain them . They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they su pport may do little or nothing for health, but rather strew i mpediments to abortion. This is true of the Texas requir e ment, upheld by the Fifth Circuit in the Whole Woman ’ s case now before the Supreme Court , that abortion clinics meet the standards for ambulatory surgical centers

— a r e quirement tha t if upheld will permit only 8 of Texas ’ s abortion clinics to remain open, out of more than 40 that e x isted when the law was passed . And comparably i n our case the requirement of

a d mitting privileges cannot be taken seriously as a measure to i m prove women’ s health because the transfer agreements that abo r tion clinics make with hospital s , plus the ability to summon an amb u lance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency. Opponents of abortion rev eal 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 r equired 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 legisl ature, by making its law requiring admitting privileges effe ctive immediatel y, would have prevented most of the abo rtion do c tors in the state from performing any abortions for26 No. 15

- 1736

months (for it usually takes months to obtain admitting pri vileges) had the district court not issued a temporary restrai ning order followed immediately by a preliminary i n junction.
In Planned Parenthood of Greater Texas the court exc o riated our opinion upholding the preliminary injunction in the pr esent case , on the ground that we had insisted on ev i dence that requiring abortion doctors to have admitting pri vileges would i m prove 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 r eview.” Id . (emphases in original). Indeed it said “there is ‘neve r a role for evidentiary proceedings’ under rational b asis review.” Id. We take that to be a reference to the motive for “rational basis” review of state laws

— namely a relu ctance by the federal judiciary to invalidate state laws that even if difficult to d efend or explain by reference to sound public policy do not cause harm serious enough to be class ified as depriving persons of life, liberty, or property, howe ver broadly those terms are understood.
But a statute that curtails the constitutional right to a n 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 th e sta tute

. The statute may not be irrational, yet may still impose an undue burd en

— 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 u n constitutional.
The evidence of benefits that was presented to the Texas l egisl a ture and discussed by the Fifth Circuit was weak; i n
our case it’s nonexistent

. The principal witness for the State of Wisconsin, Dr. Thorp , mentioned earlier, test i fied that theNo. 15

- 1736 27

death rate for women who undergo abo r tions is the same as for other pregnant women . B ut he could not substantiate that propositi on and a d mitted that both rates are very low

. His expert report states that there are “increased risks of death for women electing [abortion] compared to chil dbirth,” but the studies he cited measured long

- term mortal ity rates rather than death resulting f rom an abortion, and also failed to control for socioeconomic status , marital status, or a variety of other factors relevant to lo n gevity . See D avid Reardon & P riscilla Coleman, “Short and Long Term Morta lity Rates Associated with First Pregnancy Outcome: Popul ation Register Based Study for Denmark 1980

– 2004,” 18 Med ical Science Monitor PH71, PH75 (2012); Coleman et al., “R eproductive History Patterns and Long

- Term Mortality Rates: A Danish, Population

- Based Record Linkage Study,” 23 E uropean J. Public Heal th 569, 569, 573 (2012). In contrast, the plaintiffs’ expert Dr. Laube tendered a more apt study which concluded that the risk of death ass o ciated with childbirth is 14 times higher than that associated with abortion. See E liz abeth G. Raymond & D avid A. Gr imes, “The Comparati v e Safety of Legal Induced Abortion and Childbirth in the United States,” 119 Obstetrics & Gyn e cology 215 (Feb. 2012)

. Dr. Thorp acknowledged that the number of abortion providers is declining, but attributed this (again without substan tiation) not to harassment but to our society’s “pr ogressing in its recognition of what constitutes h u man life.” And he agreed as we noted earlier that admitting privileges are no more necessary for abortion than for other outpatient surgical procedures. N either 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 lac k ed admitting28 No. 15

- 1736

privileges. The evidence was heavily weighted against the defendants. We do not agree with the Fifth Circuit that ev idence is irrelevant in a constitutional case concerning abo rtion.
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 admi tting privileges are of value to a patient b e cause they suggest that the hospital that has granted them thinks well of the doctor and be cause he may be able to expedite the admi s sion of a patient who needs hospital care to the hospital in which the doctor has those privileges . These witnesses did not test ify that an abortion doctor who lacks admitting privile g es is a danger to his patients . The neutral expert, Dr. B u lun, said that privileges could have advantages, but he was compa ring 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 ha d privile ges, would be preferable to there being enough abortion do ctors but not all with admitting privileges. He added that “if there’s a well

- established procedure for a transfer agre ement, in my mind that would be the most i m portant factor to ensure go od quality of care.” There is no evidence that transfer agreements provide inferior protection to the health of women undergoing abortion compared to admitting pri vileges. When the transfer agreements and the availability of emergency

- room care and the rarity of complications of abo rtion that require hospitalization are compared to the impact this statute would have on access to abortion in Wi s consin, it is apparent that the d e fendants have failed to make a dent inNo. 15

- 1736 29

the district court’s opinion grant ing the permanent injun ction sought by the plaintiffs.
A FFIRMED30 No. 15-1736

M A N I O N , Circ uit Judge , di ssen tin g.
In June 2013, the Wi scons i n legis lature i ntro duced a statute

r e qui ring abort i on doctor s to have admi tting privi leges a t a nearby hospi tal. The statute was si gned i nto law the followi ng month, and the p l a int i ffs obtained a prelim i nary i njuncti on from the di stric t court, whi ch we affi rmed. Planned Parenthoo d of Wis., Inc. v. Van Hollen , 738 F.3d 786 (7th Ci r. 2013). The di stric t court then gr anted a permanent i njuncti on on the merits, fi ndi ng that the admi tting-pri vileges requirement

unc onsti tutionally i nfri nged on a woman’ s right to abort i on. Planned Parenthoo d of Wis., Inc. v. Van Hollen , 94 F. Supp. 3d 949 (W.D. Wi s. 2015). Relying on the novel legal standard crafted by the major i ty in V

an Hollen , the di stric t court reached thi s result by shi fti ng the burden onto the state to adduc e empi ric al evidenc e justif

yin g the rat i onali ty o f its reg ulati on. Id. at 962–64. Thi s was err or

. U nd er well-es tabli shed Supreme Court precedent, the state may consti tutionally r e gulate abort i on so long as i t has a rat i onal basi s to act and d o e s not i mpose an undu e burden. Gonza les v. Carhart, 550 U.S. 124, 158 (2007). Becaus e Wi scons i n’s admi tting-pri vileges requirement sati sfi es thi s standard, I di ssen t.
I
Between 2009 and 2013, at least ni neteen women who sought abort i ons at Pl a nned Parenthoo d cli ni cs i n Wi scons i n sub sequently received hospi tal tr eatment for abort i on-relate d compli cati ons. Surely , no reasonable patien t considering a 1

See Dkt. 19 8 ¶ 11

. The reco rd also reveals tha t, duri ng tha t peri od , at l east 1 fo ur patients who rece i v ed ab or tio ns at those cl i nics were trans ferr ed fro m the cl i nics to a hospi tal b y am bu l ance fo r ab or tio n-rel ated compl i catio ns, and fo ur women repo r t e d tha t they had post- ab or tio n i nfecti ons tha tNo. 15-1736 31

m e d i c a l p r o c e d u r e k n o w n t o r e s u l t i n compli cati ons—poten tiall y even death—would reg ard state

measu res desi gned to mi ni mi ze those ris ks as an i mposi tion on her consti tutional rights. After all, patien ts are more likely to undergo medi cal procedures when they k no w that di screte

measu res have been take n by the state to reduce the li kelih ood

o f harm. Recognizi ng these basi c facts, the four other feder a l appellate ci rcui ts that have exami ned si mi lar admi t t ingprivi lege requirements have found or assu med a rat i onal basi s for them. Thi s i s suc h commo n sense that i t would scarcely
warrant menti on i n any other context

. B ut thi s case i nvolv es abort i on, so all bets are off. Safety i s not a negli gib le concern i n any fi eld of healthcare. Abort i on—whi ch i s sub ject to less reg ulator y ov ersi ght than almost any other area of medi ci ne—bears no exception. When

we fi rst rev i ewed Wi scons i n’s admi tting-pri vileges r e q ui rement, my concu rr ence ci ted nu merous examples of egr egious “abort i on care” i n states across the nati on. One art i cle detailed the practic es at former abort i oni st Ker mi t Go snell’s cli ni c i n Penns ylvania, whi ch i nclu ded unli cens ed personnel conduc ti ng gynecolo gic al exami nati ons and admi ni stering pai nki llers. These practic es r e su l t ed i n the death of a patien t named Kar namaya Mong ar, who di ed after being gi ven an o ver dose of anesthesi a and pai n medi cat io n. Media repo rt s also ci rcuresul ted i n treatment at a hospi tal. Id

. ¶¶ 12 –1 3. Add i tio nall y, b etween 20 09 and 20 14 , at l east ei ght AM S ab or tio n patients we r e trans ferr ed di rectl y fro m AM S’s ab or tio n cl i nic to a hospi tal to treat seri ous compl i catio ns fro m

an ab or tio n pro cedur e perf or med b y one o f AM S’s physici ans

. Id

. ¶ 26

. During tha t sam e time peri od , at l east three AM S ab or tio n patients suffer ed compl i catio ns seri ous enough tha t a hysterectomy was requir ed, resul ting i n those pati ents no l onger b ei ng ab l e to bea r chi l dren. Id

. ¶ 2 7.32 No. 15-1736

lated that Dr. Gosnell physi cally assau lted and perfor me d a forced abort i on on a mi nor and left fetal remain s i n a woman’s uterus, caus i ng her ex cruci atin g pain

. Dr. Go snell was ulti mately convic ted of murder for the deaths of three i nfants deli ver ed ali ve but sub sequently kill ed
at hi s cli ni c. I n l ight of the nati onwi de atte nti on that Dr. Gosnell’s shop of hor r o r s attr acted, the Wi scons i n St ate As s e mbly acted swi ftly to pass Act 37, i nclu di ng the admi ttingprivi leges requirement at i ssu e, i n or der to prot ect the health and saf ety of preg nant women wh o have chosen an abort i on. Thi s law sui t followed.

Dr. Gosnell was able to run hi s oper ation i n a reg ulator y

vacuum derived i n no s mall part fr om the v i ew held by some that any reg ulati on upon hi s practic e wa s a threat to the consti tutional rights of hi s pati ents. Although we h ave recogni zed that d octor s may bri ng sui t on behalf of their abort i on p a tients, i t does not automatic ally follow that doctor s a nd patien ts have i dent ical i ntere sts. The consti tutional right to privacy exis ts across the spectrum of medi cal procedures, yet i n no other area of medi ci ne may a doctor bri ng a sui t on behalf of a patien t solely becau se the doctor fi nds a safety reg ulati on

cumbersome. Where state reg ula tion i mposes on doctor s

measu res desi gned to i mprov e patient safety, doctor -pati ent i ntere sts may di ver ge. Becaus e that i s preci sely the case i n thi s i nstance, we mus t look to the reg ulati on’s effect on the p r ospecti ve patien t, not to the i nconveni ence the reg ul a t ion presents to t he abort i oni st.
Rather than shi ft the burden to the state to prov i de reasons i t was justif i ed to enact the law at i ssu e, we are obli gate d to uphold a law that regulates ab or tion where ther e i s a rational basi s to act so long as the law does no t have the effect ofNo. 15-1736 33

i mposi ng an undu e burden on a woman’s abi li ty t o make t he deci si on to choose abort i on. Here, the court sets thi s burden of proo f exactly backwards. Becaus e Wi scons i n’ s admi ttingprivi leges requirement prot ects the health and safety of preg nant women and does not consti t ut e an undu e burden under Casey , I would jo i n the Fi fth Ci rcui t’s merits deci si on i n Planned Par e n thoo d of Greater Texas Sur gical Health Servic es v. Abbo tt, 748 F.3d 583 (5th Ci r. 2014), reh’g en banc denied , 769 F.3d 330 (5th Ci r. 2014) ( Abbo tt II ), whi ch upheld a func tionally i denti cal law on si mi lar facts. A ll o f t hese facts lead me t o the conclu si on that the judgment of the di strict co urt should be

rev ersed. Fo r t he reasons that follow, I dis sent.
II
A. Wisc onsin has a Rati onal Basi s to p rotect the health and safety of pregnant women seeking an abortion.
The Supreme Court ’s survivi ng a bo rt i on cases have repeat edly affi rmed that t he state has a sub stanti al i ntere st i n reg ulati ng abort i on i n furtherance of i ts i ntere sts i n promo tin g the h ealth an d safety of preg nant women. See, e.g., Gonzales v. Carhart , 550 U.S. 124, 158, 163 (2007); Stenberg v. Carhart, 530 U.S. 914, 931 (20 0 0 ); Maz urek v. Armstrong, 520 U.S. 968, 973 (1997) (per curi am); Planned Parenthoo d of Se. Pa. v. Casey , 505 U.S. 833, 8 4 6 , 8 78 (1992) (plurali ty); Roe v. Wade, 410 U.S. 113, 150, 163 (1973). So have ours. See, e.g., Karlin v. Foust , 188 F.3d 446, 478 (7th Ci r. 1999); Planned Parenthoo d of Wis. v. Doyle , 162 F.3d 463, 467 (7th Cir. 1998). Although the court p ur port s to be consi stent wi th these

cases , i n reality, i t s d e cisi on undermi nes the state’s i ntere st recog ni zed wi thi n them. By doi ng s o, the court sets a dan ger
o us p recedent that jeo pardizes the abi li ty of states to enact34 No. 15-1736

laws desi gned to curb ris ks to the safety and welfare of patien ts

w h o c h o o s e t o u n d e r g o i n v a s i v e m e d i c a l procedures—in clud i ng the women whom thi s admi ttingprivi leges law pr o t e ct s. A bri ef remin der of the Supreme Court ’s repeat ed emphas i s on the state’s i ntere st i n prot ecti ng the he alth and safety of preg nant women who have chosen abort i on i s apparently necessary.

B. The Supreme Court’s abortion deci sions

In Roe , the Court recog ni zed that a state has a “l e g it imate i nte r e st i n seei ng to i t that abort i on, li ke any other medi cal procedur e , i s perfor med under ci rcums tances that i nsu re maxi mum safety for the patien t.” Roe , 410 U.S. at 150. The Court conclu ded that the state’s legiti mate i ntere st i n reg ulati ng abort i on to prot ect maternal health “obvi ously ext ends at least to [regulating] the performi ng p hysi ci an and hi s staff, to the faci li ties i nvolv ed, to the availab i lity of after-care, and to adequate prov i si on for any compli cati on or emerge ncy that may aris e.” Id. Roe left no d o ub t t hat the state “may reg ulate the abo r t io n procedure to the ext ent that the reg ulati on reasonably relat es to the pr e ser vat i on and prot ecti on of maternal health.” Id. at 163.

In Casey , the Court abandoned Roe’ s rigi d tr i mester framework

. Casey , 505 U.S. at 872–76. But not before reiterat i ng that “the St ate has legiti mate i ntere st s from the outset of the preg nancy in pro tecting t he health o f t he woman and the li fe of the fe t us that may become a chi ld.” Id. at 846. Furt her, the Court added that, “[a]s wi th any medi cal procedure, the St ate may enact reg ulati ons to further the health or safe t y of a

woman s eeking an abortion.” Id. at 878.
Five year s later , i n Maz urek , the Court rejected a challen geNo. 15-1736 35

brought by abort i on prov i ders to a state law that restr i cted the prov i si on of abort i ons only to li cens ed physi ci ans. Maz urek , 520 U.S. at 976. By so rulin g, the Co urt recalled that its “c ases reflect the fact that the Constituti on gives the St ates broad latitude to deci de that partic ular func tions may be perfor med only by lic ensed professi onals.” Id. at 973 (ci tation omi tte d).
Shor tly there after, i n Stenberg , the Court underscored Roe and Casey ’s commi tment to the health and safety of preg nant

women by striki ng down a federal law that made partial-b i rt h abort i on i llegal becau se i t fai led to contai n a “health exception

. . . ‘for the preserv ation of the li fe or health o f t he mother .’” Stenberg , 530 U.S. at 938 (ci tation omi tte d). In layin g the foundati on for i ts deci si on, the Court fi rst recalled that i t has “repeat edly i nvali dated statutes that i n the process of reg ulati ng the methods of abort i on, i mposed si gni fi cant health ris ks.” Id. at 931 (em p hasi s omi tte d). Channeli ng Casey , the Court then

sum mari zed the state’s i ntere st i n the health of preg nant

women as follows: “‘where i t i s necess ary , i n appropr i ate medi cal judgment for the preserv ation of the li fe or he a lth of the mother ,’ [] thi s Court has made cl e a r that a St ate may promo te but not endanger a woman’s health when i t reg ulates the methods of abor tion.” Id. (ci tations omi tte d).

Most recently, i n Gonza les , the Court consoli da t e d these prin ci ples, acknowledgi ng that “[w] here i t has a rat i onal basi s to act, and i t does not i mpose an undu e burden, the St ate may

use it s reg ulator y power” to reg ulate abort i on. Gonza les 550 U

. S

. at 158. Gonza les held that state and federal lawmakers have “wi de di screti on to pass legis lation i n areas w here t here i s medic a l a nd sci entif i c unc ert ai nty.” Id

. at 163 (ci tations omi tte d). In short, ov er four decades of Supreme Co urt deci si ons establi sh that the state has a legiti mate i ntere st i n36 No. 15-1736

promo tin g the health a nd safety of preg nant women seeki ng an abortion. C. The court spl its wit h four federal appellat e circ uits

. Min dful of the health and safety i ntere sts recog ni zed i n these deci si ons, Wi scons i n and eleven other states have pass ed ad mi tting-pri vilege laws

. Planned Parenthoo d of Wis. v. Van Hollen , 738 F.3d 786, 791 (7th Ci r. 2013). Lawsui ts i ni tiated by abort i on prov i ders followed, and multi ple ci rcui ts have ruled

on their consti tutionali ty. The rat i onales deployed in t hese deci si ons have varied, but two f acts are comm on throughout. First, ever y ci rcui t to rule on si mi lar admi tting-pri vileges laws li ke the one at i ssu e here has uni formly upheld them. Second,

no ci rcui t except ours has ventur ed a n yw h e re c l ose to adopting the ext reme posi tion take n by the court that a state’s admi ttingprivi leges law lacks a rat i onal basi s. See Whole Women’s Health v. Cole , 790 F.3d 563, 584 (5th Ci r. 2015) (plai nti ffs challen gin g Texas’s admi tting-pri vileges law concede it is s upporte d by a
rat i onal basi s); Jackso n Women’s Health Org. v. Curr ier, 760 F.3d 4 4 8 , 454 (5th Ci r. 2014) (“H.B. 1390 sati sfi es rat i onal bas is

rev i ew based upon our bi ndi ng precedent i n Abbo tt .”); Planned Parenthoo d of Ariz. , Inc. v

. H u m bl e , 753 F.3d 905, 914 (9th Ci r. 2014) (“We assu me wi thout deci di ng that the Arizona law pass es rat i onal-bas i s rev i ew.”); Abbo tt II , 748 F.3d a t 5 95 (“A p p lyin g the rat i onal basi s test corr ectly, we have to conclud e that the St ate acted wi thi n i ts prer ogat i ve to reg ulate the medi cal professi on by heed i n g th e s e patien t-centered concerns and requiri ng abort i on p r a ct i tioners to obtain admi tting privi leges at a nearby hospi tal.”); Planned Parenthoo d of Greater Tex. Sur gical Health S ervs. v. Abbo tt, 734 F.3d 406, 411 (5th Ci r. 2013 ) ( Ab bott I ) (“The St ate offered more than a concei vable
state of facts that could prov i de a rat i onal basi s for requiri ngNo. 15-1736 37

abort i on physi cia ns to have hospi tal admi ssi on privi leges.”) (footnot e and i nternal marks omi tte d); Gree n ville Women’s Clin ic v. Comm’r, S.C. Dep’t of Health & E nvtl. Contro l , 317 F.3d 357, 363 (4th Ci r. 2002) (“Thes e requirements of havin g admi tting privi leges at loc a l hospi tals and refer ral arr angements wi t h l o cal exper ts are so obviousl y benefi ci al to patien ts.”) (ci tations om it ted); Women’s Health Ctr. of W. Cty. , Inc. v. Webster

, 871 F.2d 1377, 1381 (8th Ci r. 1989) (“We have no di ffi culty i n co nclu di ng that [the admi tting-pri vileges law]
rat i onally relat es to the state’s legiti mate i ntere st i n ensuri ng that prompt backup care i s availab le to patien ts who undergo abort i ons i n outpatient cli ni cs.”)

. The rat i onal basi s standard i s no stranger to the judi ci ary

. Feder al courts a cr o ss the nati on apply i t reg ularly when consti tutional challen ges are brought again st state acti on. Fami li ar as i t may be, the di st r i ct court fai led to apply i t, proceeding i nstead as though the state bore the burden of prov i ng that i ts admi tting-pri vileges law was r e a sonably relat ed to the health and sa fe t y of women seeki ng abort i ons. Van Hollen , 94 F. Supp. 3d at 964 (“Si nce the St ate contends that the admi tting privi leges requirement at i ssu e i s reasonably di rected to the health of women seeki ng abo r t io ns , i t has the burden of demonstrating thi s li nk.”) (ci tations omi tte d).
That’s exactly backwards. Under rat i onal basis r eview, courts mus t presume that the law i n questio n i s valid and uphold i t so long as the law i s rat i onally relat ed to a legiti mate state int e rest. City of Cleburn e v. Cleburn e Livin g Ctr ., 473 U.S. 432, 440 (1985). Sinc e the Supreme Court has repeat edly recog ni zed the state’s longstandi ng i ntere st i n prot ecti ng the health and safety of preg nant women who have chosen abort i on, at thi s juncture, “ we mus t presume that the38 No. 15-1736

a d m i tt i n g- p ri vi l eges requirement i s consti tutional, and uph ol d i t so long as the requirement i s rat i onal l y related to Wi scons i n’s legiti mate i ntere sts.” Van Hollen , 738 F.3d at 800 (Mani on, J.,

co nc urring i n part and i n the judgment) (ci tations omi tte d). The party challen gin g an abort i on restr i cti on bears the burden of prov i ng the gov ernment’s acti on i rr ational. See Maz urek , 520 U.S. at 971 (ci tin g Casey , 505 U.S. at 884). To prov e a legis lative
act i rr ati onal, “the burden i s on the one attacking the legis lative

arr angement to ne g ate ever y concei vable basi s whi ch mi ght supp or t i t.” Heller v. Doe , 509 U

. S

. 3 1 2 , 320 (1993) (ci tation omi tte d). Thi s i s a tall or der becau se “the gov ernm e nt ma y defend the rat i onali t y of i ts acti on on any gr ound i t can

mus ter .” RJB Props., Inc. v. Bd. of Educ. of Chic. , 468 F.3d 1005, 1010 (7th Ci r. 2006) (ci tation and i nternal mark s omi tte d).
Thus , the i nqui ry for courts under rat io nal basi s rev i ew start s wi th thi s questi on: i s there “any reasonably concei vable
stat e of facts that could prov i de a rat i onal basi s” for the state reg ulati on? See F.C.C

. v. Beach Commc’n s , Inc. , 508 U.S. 307, 313 (1993); Abbott I

, 734 F.3d at 411. As demonstrate d above, the

answ er to that questi on i s yes. So the next questi on to ask i s whether the state’s means of promo tin g i ts reg ulati on (admi ttin g p ri vileges) are reasonably relat ed to the legiti mate i ntere st already establi shed (patient safety). If that answer i s als o yes, then the reg ulati on sati sfi es rat i onal basi s rev i ew, and we mus t uphold i t. That the contro ver sy i mpli cates abort i on doe s no t alter the a na l ysi s becau se “[n]othi ng i n the Supreme Court ’s abort i on jur i sprudenc e deviates from the essenti al attr i butes of the rat i onal basi s t est, whi ch affi rms a vital prin ci ple ofNo. 15-1736 39

democratic self- gov ernment.” Abbo tt I I , 748 F.3d at 594. 2

D. Admitti ng privileges further Wisc onsin’s legitimat e stat e interes t in pat ient s afety.
Ad m i tting privi leges are, i n the words of the Four th C i rc u i t, “obviousl y benefi cial

. ” Greenvil le Women’s Clin ic , 317 F.3d at 363 (cit a t io n omi tte d). So benefi ci al, i n fact, that the National Abort i on Feder ation recommended them unti l only recently. At tr i al, Wi scons i n’s exper t, Dr. Jame s A nderson, Cli ni cal Professor i n the Department of Fami ly Practi ce & Populat i on Health at Vi rg i ni a Commonwealth Uni ver si ty School of Medic i ne, refer enc ed a publi cati on from the National Abort i on Feder ation entitled Having an Abo rtion? Your Guide to Goo d Care (2000), whi ch states that “[i ]n the case of emerge ncy, the doctor should be able to admi t patien ts to a nearby hospi tal (no more than 20 mi nutes away).” D kt. 244 at 237–40; Dkt. 126 ¶¶ 6-7. Indeed, the medi cal commu ni ty has long been of the opin i on that admi tting privi leges prov i de a real ben efi t to the

In i ts eff or ts to wrest this case fro m the amb i t of ratio nal b asis review, the 2

cour t ass i gns great wei ght to numerous studi es and repo rts which contend tha t compl i catio ns rarel y occ ur after ab or tio ns and tha t those whi c h do

occ ur are not more frequent t ha n o t he r types of outpati ent surgeri es. But this i s i mma teri al because cour ts do not we i gh ev i dence when they apply ratio nal b asis review. See Nat ’l Paint & Coatings Ass’n v. City of Chic. , 45 F.3d 11 24 , 11 27 (7 th Ci r. 19 95 ) (rec all i ng tha t there i s “never a ro l e f o r e vi dentiary pro ceed i ngs” under ration al b asis review). For the pl aintif fs to prevail , they must pro v e tha t post- ab or tio n compl i catio ns never occ ur i n Wi sconsi n,

or tha t admitti ng pri v i l eges hav e no i mpact on safety. See Heller , 50 9 U.S

. at 32 1 ( “ [T] he b urden i s on the one atta cki ng the l egi slati v e arran gement to negate every conce i vable b asis which might suppor t i t.”) (ci tatio n and i nternal marks omi tted). However, tha t i s not possi b l e on thi s r e c o rd, b ecause the pl aintif fs’ own expert and the cour t-appoi nted expert testif i ed tha t admitti ng pri v i l eges are benefi ci al because they ma ke ab or tio n safer.40 No. 15-1736

health and safety of preg nant women seeking an abo rt i on

. In 2003, the Americ an College of Surg eons i ssu ed a statement on patient-safety prin ci ples that was jo i ned by the Americ an Medic al Ass oc i a ti on a n d th e Am e ri can College of Obstetr i ci ans and Gynecologists. They li sted several “core prin ci ples,” the fourt h o f whi ch prov i ded that: “[p]h ysi ci ans perfor mi ng offi ce-b ased surgery mus t ha v e admi tting privi leges at a nearby hospi tal, a tr ansf er agr eement wi th another physi ci an who has admi tting privi leges at a nearby hospi tal, or mai ntai n an emergency t ransfer agr eement wi th a nearby ho spi tal.” 3 Perplexingly, i n t hi s cas e, the AM A and ACOG have fi led

a jo i nt ami cus bri e f arg ui ng that Wi scons i n’s admi ttingprivi leges law i s unc onsti tutional. Yet their bri ef ma k e s no menti on of their 2003 statement or their sudd en, yet conveni ent, di sa v o wa l of one of their “core prin ci ples” relat ed to patien t safety. It appears from the tr i al testim ony that plai nti ffdoctor s have si mply deci ded that admi tting privi leges are only desi rable i nsofar as t hey do not caus e members of their g ui ld to become in eli gib le to per form abor tions

. Abbo tt II also supp or ts thi s conclu si on. There, t he court observe d that “[t]here are four mai n be nefi ts supp or tin g the requirement that oper atin g surgeons hold local hospital admi tting and staff privi leges: (a) i t prov i des a more thor ough evaluation mechani sm of physi ci an compet ency whi ch b ett er prot ects patien t safety; (b) i t a ck nowledges and enables the i mport ance of con tin ui ty of care; (c) i t enhanc es i nter-physi ci an

See Ameri can Co l l ege of Surgeo ns, Statem ent on Patient Safety Principles 3 for Office-based Surgery Util izing Moderate Sedation/ Analgesia, Deep Sedation/Analg esia, or Gener al Anesthesia , Bul l eti n of the Ameri can Co l l e g e of Surgeo ns, V o l

. 89 , No. 4 (Ap r. 20 04 ), av ail ab l e at http://www.facs.o rg/ fel l ows_i nfo/ statem ents/st-46 .html ( l ast v i site d No v . 1 2, 20 15 ).No. 15-1736 41

commu ni cati on a n d op ti m i z e s p a ti e n t i n f or m a ti on tr ansf er and compli cati on management; and (d) i t supp or ts the ethic al duty of care for the oper atin g physi ci an to prev e nt p a t i ent aband onment.” Abbo tt II

, 748 F.3d at 592. Here, the parties hav e consoli dated these four catego ries of benefits i nto three

. The
tr i al recor d contai ns eviden ce that admi tting privi leges are rat i onally relat ed to a legiti mate state i ntere st becau se t he y p r o mote the health and safety of preg nant women seeki ng abort i ons i n Wi scons i n. Therefore , at the fi rst step of the 4 Gonza les test, thi s requir e me nt i s subject to rat i onal basi s

rev i ew. I address eachbenefi t in turn.
i. Continu ity of care
Continu i ty of care i s benefi ci al to abort i on patien ts becau se i t reduces the “ris k of i njury caus ed by mi scomm uni cati on and mi sdi agnosi s when a patien t i s tr ansf err ed from o ne health

care pr o v ider to another .” Abbo tt II , 748 F.3d at 595. Indeed,

even p l a inti ff and exper t wi tness Dr. Kathy Kin g of Plann ed Parenthoo d agr eed that conti nui ty of care i s a necess ary i ngredient when treating pati ents. Dkt. 243 at 155.

The di stric t cour t presuppo sed tha t the l ack o f r e qu i red admitti ng 4 pri v i l eges for other, m or e dan gero us medi cal proc edure s showed tha t the onl y purpo se of Wi sconsi n’s l aw was to restri ct safe, l egal ab or tio ns. It also concl uded tha t the i mmediate eff ecti ve d at e after signi ng was cl early i ntended t o cl ose the cl i nics. But the l egi slati v e purpo se was not to i mmediatel y cl ose the cl i nics. The l egi slature approved the statu tes sev eral weeks b efo re the governor signed the l egi slati on. There i s no evidence tha t their apparent fail ure to desi gna te a speci fi c eff ecti v e date was an y t hi ng

o t he r t han a simpl e oversi ght. The prel i minary i njuncti on, with which I

concur red, qui ckl y cured tha t pro b l em. Si gnifi cantly, the prel i minary i njuncti on and the del ay i n connecti on with the tri al enab l ed all of Planned Parenth oo d’s ab or tio n do ctor s to acqu i re admi tting pr i v i l eges.42 No. 15-1736

Dr. Kin g’s opin i on was sh ared by the court-appointed exper t, Dr. Ser dar Bulun , Cha i r of th e D epart ment of Obstetr i cs and Gynecology at Nort hwes ter n Un i ve rs i ty ’s Fe i nberg School of Medic i ne, who also op ine d t hat “physi ci an to physi ci an

commu ni cati on i s one of the most i mport ant requirements for optimal handli ng of a compli cati on aris i ng from a procedure,” and that “commu ni cati on shou l d i deally take place between the physi ci an perfor mi ng the abort i on and the physi ci an at the hospi tal, who wi ll be handli ng the compli cati on.” 7th Ci r. Dkt. 44 at 4. Dr. Bulun testif i ed fu rt her that admi tting privi leges

5 would have benefi ts “probably 90% of the tim e,” Dkt. 244 at 60, and that whi l e tr ansf er agr eements were i mport ant, “i n an i deal world both [admitti ng privi leges and tr ansf er agr eements] s hould exi st.” Id. at 61.

Li kewi se, W i s c ons i n’s exper ts, i nclu di ng Dr. Anderson and Dr. John Thorp (a board-certifi ed ob-gyn who teaches a t t he Uni ver si ty of N or th C a ro l i n a ’s Sc h oo l of Pub li c Health), opin ed that admi tt i n g p ri vi l e ge s a i d e d i n promo tin g conti nui ty of care.

In i ts stan di ng ana l ysis, the cour t cor rectl y reco gnizes tha t a woman who 5 has had or i s expecting to hav e an ab or tio n do es not wan t her nam e exposed

as a pl aintif f i n a l aws uit chall enging the consti tutio nali ty of t he l aw regul ating ab or tio n practic es. The sa me p ri v acy conce rns woul d b e encountere d i f a woman suffer i ng fro m an ab or tio n-rel ated i njury had to go to the nearest emergency ro om. There she woul d hav e to give her nam e and di sclo se the cause ofh er injur y (o r else li e ab out i t, suggesting tha t i t must hav e b een a n atura l m i scarriage). She ma y also hav e to wait i n l i ne b efo re b ei n g t re a t ed , or undergo prel i minary exa minatio ns to deter mine th e n a tu re and source of the pro b l em. If admitti ng pri v i l eges were i n pl ace, b y contrast, the woman’s ope rating physici an coul d b ypass any emb arrass i ng del ay and pro mptly secure the woman’s admissio n and treatment upon arrival. In this way, the physici an-to-physi ci an communic atio n faci l i tated b y the admitti ng-pri v i l eges re quirement wo uld help pro tect the wo man ’s pri v acy an d pr omo te mor e ef fi ci ent remedi al tre atm ent.No. 15-1736 43

Id. at 233 (Dr. Anderson); Dkt. 131 ¶ 2 2 & Dkt. 164 ¶ 15 (Dr. Thorp).
The opin i ons of these medi cal professi onals are shared, too , b y th e Fi fth Ci rcui t, whi ch conclu ded that “[r]equi ri n g ab or ti on prov i ders to h a ve a dmi tting privi leges would also promo te the conti nui ty of care i n all cases , reduci ng the ris k of i njury caus ed by mi scomm uni cati on and mi sdi ag no si s when a patien t i s tr ansf err ed from one health care pr ov i der t o another .” Abbo tt II , 748 F.3d at 595.
ii. Cre dentialing
Sim i larly, the “credentiali ng process entail ed i n the reg ulation reduces the ris k that abort i on patien ts wi ll be sub jected to

wo e fu lly i nadequate tr eatment.” Id. In other words, credentiali ng advances the st a te ’s i n te rest i n promo tin g patien t health by helpi ng ensure that doctor s perfor mi ng ab or tions are quali fi ed. Dr. Geoffrey R. Key es, presi dent of the Americ an As s oc i a ti on f or Ac c re d i tation of Ambulatory Surg ery Faci l i ti e s , opin ed that “cred e n ti a l i n g a n d p ri vi l e gi n g s e rv e i mport ant and

necess ary func tions i n contemporar y medi cal prac tic e, prim ari ly to ensure that patien ts receive safe hi gh quali ty care from prov i de rs w i th a p p ro p ri a te s ki l l , tr a i n i n g and exper i ence.” Dkt. 127 ¶ 15.

In addi tion to the testim ony of Dr. Anderson , Dk t

. 244 at 232–33, Dr

. Bulun opin ed that a benefi t of physi ci ans havin g

a d m i tt i ng privi leges i s “to ensure that the practic i ng p h ys i c i a n s

are appropr i ately quali fi ed, tr ai ned and competent to practic e i n a speci fi c area of medi ci ne or surgery .” 7th Ci r. Dkt. 44 at 3. The F ift h Ci rcui t agr eed, statin g that the “requirement that physi ci ans perform i n g abort i ons mus t have hospi tal admi tting privi leges helps to e ns ur e that credentiali ng of physi ci ans beyond in i tial li cens i ng and periodi c li cens e renewal occurs.”44 No. 15-1736

Abbo tt I , 734 F.3d at 411.
iii. Acc ountability and peer review

Fina l ly, i n addi tion to Wi scons i n’s exper ts and Dr. Bulun , plai nt i ffs ’ own exper t wi tness, Dr. Douglas W. Laube, a Professor of Obstetr i cs and Gynecology at the Uni ver si ty of Wi scons i n Medic al School, and past presi dent of the Americ an College of Obstet r icians and Gynecologists, testif i ed that

accoun tabi li ty and peer rev i ew was a benefi t to wo me n’s health promo ted by Wi scons i n’s admi tting-pri vileges requirement. Dkt. 244 at 65–66. 6

III
A. Wis c on s i n ’s a d m i t t i n g- p r i vi l e ge s r e q u i r e m e n t does not

Whil e the onl y i ssue on appeal i s the man date fo r admitti ng p ri vi l e ges, 6 another v ery i mpor t a n t p u rp os e of Wi sconsi n’s l aw was the requir ement fo r ultr asounds. As I poi nted out i n my earli er concur rence, rece i v i ng an ultr asound b efo re an ab or tio n b enefi ts women i n sev eral way s. For starters, the ultr asound woul d conf i rm the fact tha t she was pregnant. Once she saw

or heard the heartb eat, sh e wo u l d b e ass ured tha t there i s not a mistaken pregnancy test or a spontaneous miscarri age tha t was not earli er detec ted. Thus she woul d a v oi d pa ying sev eral hundred dol l ars for a n unnecessa ry ope ratio n. Al so, the ultr asound woul d help reduc e medi cal uncerta in ty a nd di sclo se any pote ntial compl i catio ns, such as by enab l i ng a more accurate

ass essment of the gestational stag e of the pregnancy. The detec tio n of twins might als o g i v e the woman seco nd thoughts. But regardl ess of whether certai n l egi slator s hoped tha t an ult r as o u nd woul d cause the woman to chan ge her mind, t he ultr asound i ndisputably pro v i des i mportant i nfor mat i o n faci l i tating a more ful l y i nfor med deci sio n, which cann ot b e

seen a s any thing b ut a b enefi t t o the woman (even if the ab or tio nist might di sapprove of her deci sio n). The obv i ous b enefi ts fl owi ng fro m the ultr asound requir ement show tha t Wi sconsi n’s l aw i s su p por ted b y a numb er of ratio nal b ases—a l l centered on the health and wel f ar e of the woman—in addi tio n to those adv anced b y the requir ement fo r admitti ng pri v i l eges.No. 15-1736 45

impose an Undue Burden on a wo m a n ’ s abili ty to choose abortion.
The recor d evidenc e I h a ve c i te d e s ta b li shes beyond a doubt that the Wi scons i n St ate Assemb ly had a “rat i onal basi s to act” i n pass i ng thi s admi tting-pri vileges law i n or der to prot ect the health and safety of preg nant women who choose abort i on i n Wi scons i n. See Gonza les , 550 U.S. at 158. Gi ven t hat “[r]e gu l a ti on s d e s i gned to foster the health of a woman seeki ng

an abort i on a r e v a l id i f they do not consti tute an undu e burden,” Casey , 505 U.S. at 877–78, the next questi on i s whether thi s law has the effect of i mposi ng an und ue burden on the abi li ty o f women to choose abort i on. The Casey plurali ty fi rst descri bed the “undu e burden” test

as fo l lows: “A fi ndi ng of an undu e burden i s a shorthand for the conclu si on that a state reg ulati on has the purpose or effect of placi ng a sub stanti al obstacle i n the path of a wo ma n seeki ng an abort i on of a nonviab le fetus.” Id. at 877. We sai d tha t , in a ppli cati on, “a court’s proper focus mus t be on the practic al i mpact of the challen ged reg ulati on and whether i t wi ll have the li kely effect of prev entin g a si gni fi cant numb er of

women for whom the reg ulati on i s relev ant from obtaining abort i ons.” Karlin , 188 F.3d at 4 8 1

. The Supreme Court then si mpli fi ed Casey ’s descri ption of an undu e burden by collapsi ng the purpose i nqui ry i nto the effects test

. S e e Gonzales , 550 U.S. at 1 5 8 ; Curr ier, 760 F.3d at 460 n.4 (Garza, J., di ssen tin g). That i s the second s tep of o ur analysi s.
As an i ntermediate appellate court, we are bound to apply standards establi shed by the Supreme Court

. When thi s ca se

was fi rst before us, however , the court major i ty shi fted the burden to the state to justif y the medic a l necess i ty of i ts admi tting-pri vileges law and characterized the undu e burden46 No. 15-1736

standard for t he di stric t court to apply on remand as follows:

T h e cases that deal wi th abort i on- re l a te d s ta tu te s s ou gh t to be justif i ed on medi cal g r ounds require not only evidenc e (here lacki ng as we have seen) that the m edi cal gr ounds are legiti mate but also t ha t the statute not i mpose an “undu e burden” on women seeki ng a bo rtion s. Th e feebler the medi cal gr ounds, the li kelier the bur den, even i f sli ght, to be “undu e” i n the sens e of di spropor tionate or gr atui tous.
Van Hol l e n , 738 F.3d at 798 (ci tations omi tte d). Although I

concu rr ed i n t hat judgment affi rmi ng the pr eli mi nary i njunction becau se the law prov i ded no gr ace period fo r a bo r tion doctor s to acqui re admi tting privi leges before t he law requi ri ng them too k effect, I di d not then—nor do I today —endorse th e h om e
-b rewed “undu e burden” standard that th e c ou rt n ow doubles- down on. Sim ply stated, it fi nds n o basi s i n Gonza les , Casey , or any o ther case law other than that whi ch i t created. See Whole Women’s Health v. L akey, 769 F.3d 285, 297 (5th Ci r. 2014) (“Under our precedent, we have no author i ty by whi ch
to turn rat i onal basi s i nto stric t scruti ny under the gui se of the undu e burde n inq uiry.”). By rev ersi ng the burdens of proo f, the court also i mpli ci tly rej ects Maz urek , 520 U.S. at 971, whi ch requires that the party challen gin g an abort i on restr i cti on bear the burden of pro of. See Abbot t II , 748 F.3d at 597.

1. Effect of AMS’s potential closure on the Undue Burden analysis

In Wi scons i n, Plann ed P a re n th oo d op e ra te s abort i on cli ni cs i n Milw aukee, Madis on, and Appleton. Its abort i on prov i ders
at each of those cli ni cs have secu red admi tting privi leges. Affi li ated Medic al Ser vic es (AMS) oper ates one abort i on cli ni cNo. 15-1736 47

i n Milw aukee. Drs. Denni s Chris tensen and Bernard S mit h staff AMS and are, at present, the only abort i on p r o v i ders i n Wi sco ns in to conduc t abort i ons after 18.6 weeks LMP (commonly known as “late-ter m abort i o ns”). Nei ther has secu red admi tting privi leges. Consequently, the plai nti ffs contend that AMS ris ks closure, and that, i f that occurs, women seeki ng abort i ons i n Wi scons i n wi ll fa ce three undu e burdens: (1) si gni fi cantly i ncreased wai t tim es; (2) required t rav el to Chi cag o or other locations ; and (3) no i npati ent option for

women seeki ng late-ter m abort io ns i n Wi scons i n. I address these arg uments i n turn.
a. Wait t imes

Dr. Kin g of Plann ed Parenthoo d testif i ed that, i f AMS were to close, i t would “ov erwhelm the capac i ty of the Plann ed Par e nt hood of Wi scons i n cli ni cs to accomm odate” the 2,500

women who i ncu rr ed abort i ons at AMS i n 2013. Dk t

. 243 at 147–48. In credi tin g thi s testim ony, the di stric t court err on e
ously characterized the undu e burden st a nd ard as requiri ng “acces s to abort i on services i n Wi scons i n.” Van Hol len , 94 F. Supp. 3d at 989. The Supreme Court’s abor tion jurisprudenc e carries n o in tr astate g uarantee. “Although all pre-viabi li ty regulations burden a woman’s abi li ty to obtain an abort i on t o so me degr ee, the Court [i n Casey ] explain ed that an abort i on law i s not render ed unc onsti

tutional merely becau se i t oper ates to make i t more di ffi cult or

more expensi ve to procure an abort i on.” Ka r l i n , 188 F.3d 479 (ci tin g Casey , 505 U.S. at 874). Casey rej ected the notion that the abort i on right i s the right “to decide whether to have an abort i on wi thout i nterfer ence fro m t he St ate.” Casey , 505 U.S.
at 875 (quoti ng Planned Parenthoo d of Cent. Mo. v. Danforth , 428 U.S. 52, 61 (1976)) (i nternal marks omi tte d ). R a ther, the48 No. 15-1736

a bo rt i on right recog ni zed by Roe i s the “right to be free fro m

unw arr anted gov ernmental i ntrusi on” i n maki ng the abort i on deci si on. Id

. (ci tation and i nternal marks omi tte d). Ultim ately, Casey sum mari zes the undu e burden standard as follows : Only where state reg ulati on i mposes an undu e burden

on a woman’s abi li ty to mak e thi s deci si on does the power of the St ate reac h i nto the heart of the liberty prot ected by the Due Process Clau se. Id. 874 (ci tations omi tte d).
The Supreme Court has held that the consti tutional right to privacy e x t e nd s t o a woman’s right to choose abort i on; i t has
not held, or even i mpli ed, that thi s right i s intrastat e i n nature

. To be sure, there i s no consti tutional right to obtain an abort i on at the cli ni c of one’s choi ce and at the tim e o f o ne ’s conveni ence, just as one’s right to free speech does not apply i n all places a prot ester mi ght d e sir e to complai n. In the same way that a state may reaso nably reg ulate speech i f i t leaves open adequate alter nati ve forums for expr essio n, i ncreased wai t t ime s at one cli ni c do not consti tute an undu e burden when other cli ni cs wi t hin a reasonable di stance remain open for bus i ness

. See, e.g., Abbo tt I I , 748 F.3d at 598 (cli ni c closure was not undu e burden when another cli ni c was acces si ble wi thi n 150 mi les); Women’s M ed. Prof. Corp. v. Baird , 438 F.3d 595, 605 (6th Ci r. 2006) (sam e wi thi n 45 to 55 mi les); Greenvil le Women’s Clin ic v. Bryant, 222 F.3d 157, 165 (4th Ci r. 2000) (same w i thi n 70 mi les).
AMS i s one of four abort i on cli ni cs i n Wi scons i n and two i n M ilw aukee. Even i f i t closed, patro ns seeki ng pre-18.6 we e k LMP a bo rt i ons (approximately 98% of women seeki ng abortions i n Wi scons i n) would need to tr avel a mere 1.3 mi les (fourNo. 15-1736 49

mi nutes by automobil e) t o reach Plann ed Parenthoo d’s Milw aukee cli ni c i nstead. 7
The plai nti ffs arg ue that the state creates an undu e burden under Casey when a regulation des i gned to prot ect the h ealth and safety of preg nant women decreases the av a ila bility of quali fi ed abort i oni sts. The i mpli cati ons of thi s arg ument are astoundi ng. Taken to its logical end, thi s arg ument would require the state to assu me some affi rmativ e duty both to p r o v ide abort i on services and to do so i n a manner that i s conveni ent for co ns umers o f abor tion and wi th no reg ard for the quali ty of healthcare professi onals that a state’s naturally occurrin g market place prov i des. The st ate bears no suc h obli gation or duty. Karlin , 188 F.3d at 479 (“ Although all pr eviab i li ty reg ulati ons bu rden a woman’s abi li ty to obtain an abort i on to some degr ee, the Court explain ed [i n Casey ] that an abort i on law i s not render ed unc onsti tutional merely bec ause i t oper ates to make i t more di fficul t o r more expensi ve to procure an abor tion.”) ( ci tation omi tte d).
Whi le the Supreme Court has li mi ted a state’s abi li ty to reg ulate abo r tions , i t has never required a state to establi sh a command economy i n or der to prov i de them. That the market may di sfavor abort i oni sts i s no t t he state’s concern, but the

Statisti cs i ndic ate tha t approximatel y 98 % of women seeki ng ab or tio ns i n 7
Mi l wauk ee wil l no t be i mpacted i f AM S cl oses. In 20 12 , there were 6,9 27 abo r t i ons repo rted i n Wi sconsi n. Dkt. 20 0 ¶ 9. That sam e year, AM S perf or med 13 1 post- 20 week LMP ab or tio ns. Dkt. 24 3 at 29 –3 0. Al though these statistics do not account fo r the women who i ncurred ab or tio ns after 1 8

. 6 we e k s LMP, b ut b efo re 20 weeks LMP, the post- 20 week numb er accounts fo r l ess tha n 2% of all ab or tio ns i n Wi sconsi n. Women seeki ng the l atest term ab or tio ns permi tted b y l aw hav e access to other c l i nics i n Chic ago tha t are wel l withi n a di stan ce held not to b e an undue b urden, as I di scuss b el ow.50 No. 15-1736

prer ogat i ve of the purvey or s of that service. Li ke any enter

pris e that wi shes to be a going concern, entiti es that wi sh to sell abort i ons mus t hi re practiti oners who are a bl e t o secu re the

necess ary credentials on the basi s of their professi onal reputations and their documented prov i si on o f sk i lled care. In thi s 8 i nstance, these c redentials i nclu de admi tting privi leges.
The soluti on to the p l a int i ffs ’ problems i s that they fi nd

more quali fi ed doctor s, not that the sta t e relax —or that we strike do wn as unc onsti tutional—precauti ons take n by the
state to prot ect the health and safety of preg nant women who have chosen to abort their p r egnanci es. See Casey, 505 U.S. at 875 (rej ecti ng the notion that the abort i on right i s the right “to deci de whether to have an abort i on wi thout i nterfer ence from the St ate”). Lest there be any doubt, Wi scons i n labors under no

The c our t refers to a few ho spital s that requi re d octo rs to hav e tre ated a 8
certai n numb er of pat i e nts there i n or der to obtain admitti ng pri v i l eges. Other hospi tals might give admitti ng pri v i l ege s to do ctor s who demo nstrate compe tence i n the particul ar pro cedur e tha t the do ctor seeks to perf or m. Of cour se, a hospi tal tha t requir es del i v eri ng 10 0 l i v e b ab i es i n the previo us two years wo uld not gi v e the A MS do ctor s admitti ng p ri v i l eges b ecause, as the cour t observ es, “de l i v eri ng l i v e b ab i es i s not wha t ab or tio n do ctor s do .” And as the cour t also noted when di sc u ss i ng t he v ery l ow death rate fo r women who undergo abo r t i o ns, the study ci ted measured l ong-ter m mortal i ty rates “rathe r tha n death resul ting fro m an ab or tio n.” However, to their cred i t, the Planned Parenth oo d do ctor s at the other three ab or tio n c l i ni cs i n Wi sconsi n hav e apparently demo nstra ted suffi ci ent compe tence i n medi cal pro cedur es, perhaps even del i v eri ng l i v e b ab i es, to qua l i fy for an d to obt ain th e sta tutori l y requir ed admitti ng pri v i l eges. For

women consi deri ng ab or tio n, tha t cred ential tha t di stingui shes them fro m AM S i s worth noti ng. Al though the cour t i mpli es otherwi se, i t i s safe to say tha t the Planned Parenth oo d do ctor s wil l not depe nd on the “rare” ab or tio n compl i cati o n to obtain a suffi ci ent v ol ume of hospi tal work to maintain their admitti ng pri v i l eges.No. 15-1736 51

compuls or y receivershi p that obli gat e s it to i nterv ene i f the market fai ls to prov i de quali fi ed abort i o ni sts wi thi n i ts boundari es. Stat e i nacti on i s not state action.
In short, t he r e is simp ly no basi s for us to di srupt the market for abort i oni sts by i nterj ecti ng ourselves: their abi li ties to quali fy for a d mit tin g privi leges, li ke “[t]he i ndependent deci si ons of private hospi tals[,] have no place i n our rev i ew of
state acti on under the Constituti on.” Curr ier, 760 F.3d a t 4 6 0 (Garza, J., di ssen tin g) (ci tation and footnot e omi tte d).
b. Requi red travel and availabil ity of late- term abortions
Consumers who li ve near the border of two states tend to shop at the closest desti nati on, reg ardless of whether they resi de i n that state. Di sregar di ng thi s ro uti ne a ssumpti on, plai nti ffs arg ue that requiri ng wome n seek i ng abort i on to tr avel outsi de the state to obtain late-ter m abort i ons creates an undu e burden. Surpr i si ngly, thi s arg ument fi nds some basi s i n the Fif th Ci rcui t ’ s recent deci si on i n Jackso n Women’s Health Organization v. Curr ier, 760 F.3d 448, 457 (5th Ci r. 2014), where the court held that “the proper formulation of the undu e burden analysi s focus es solely on the effects wi thi n the reg ulati ng state.” However , our precedent squarely di sagrees wi th Jackso n : “the undu e-burden standard mus t be applied .

.

. to the nati on as a whole, rat her than one st a t e at a tim e.” A Woma n’s Choice-E. Side Women’s Clin ic v. Newman , 305 F.3d 684, 688 (7th Ci r. 2002).
Turni ng towar ds di stance rat her than t o wa r ds the gov ernor’ s mans i on, Chi cago i s approx i mately 93 mi les from Milw aukee—or a one hour and fort y min ut e drive. The Fif th Ci rcui t recently held that Texas’s admi tting-pri vileges law di d
not i mpose an undu e burde n on a woman’s right to choose52 No. 15-1736

abort i on becau se “tr avel of less than 150 mi les for some wo m e n i s not an undu e burden under Casey .” Abbo tt II , 748 F.3d at 598 (ci tation omi tte d). Be fo re Abbo tt II , the Sixth Ci rcui t si mi larly conclu ded that there was no undu e burden under Casey where

one of t wo O hio cli ni cs to conduc t 18–24 week abort i ons was closed due to lack of a tr ansf er agr eement wi th a local hospi tal,

even when the remain i ng cli ni c was l o cated ov er 200 mi les

a way. See Baird , 438 F.3d at 599, 605. Consi stent wi th these authoriti es, it i s well wit hi n t he scope o f Newman to conclu de that the 93-mi le tr i p from Milwauk ee to Chi cago to obtain an abort i on does not i mpose an undu e burden on a woman’s abi li ty t o choose abor tion. 305 F.3d at 688.

2. Even if the undue burden stand ard applied to the market ava i l a b i l i t y of a b orti on doctors, the AMS abortionist s made minimal efforts t o obtain admitt ing privileges.
When thi s case was before us on the prelim i nary i njuncti on, I asked plai nti ffs ’ couns el at or al arg ument about the status of the plai nti ffs ’ appli cati ons for admi tting privi leges at Wi sconsi n hospi tal s. Counsel was unabl e to confi rm whether any doctor s servici ng the four abort i o n cl ini cs i n Wi scons i n possess ed admi tting privi leges, nor di d she know the status of any pendi ng appli cati ons by her cli ents to o btai n them. 9

i. Planned Parenthood’s efforts to o bta in admitting pri vileges
We know more now. At least six Planned Parenthoo d

Of cour se, I r eco gnize that, at the prel i minary i njuncti on stage, i t was in 9 counsel ’s cl i ents’ b est i nterests fo r her to b e non-re sponsi v e to my questio n b ecause i f she had i nfor med us that so me of her cl i ents already po ssessed admitti ng pri v i l eges, some of the cl i nics woul d l i kel y hav e remained ope n

even i n l i ght of the l aw’s i mmed i ate eff ect, and we may hav e b een l ess l i kel y to affi rm the i njuncti on e ntered b y the di stric t co urt.No. 15-1736 53

abort i on doctor s—Dr. Susan Pfleger, Dr. Kathy Kin g , and pseudonymous plai nti ffs P1, P2, P3, and P5—all of whom di d
not have admi tting privi leges when thi s l a w s u i t was fi led, have sub sequently obtained them. See Van Hollen , 94 F. S upp. 3d at 988–89

. These i ndi vidu als put fort h suf fi ci ent efforts to obtain admi tting privi leges and were suc cess ful, prov i ng that obtaini ng admi tting privi leges i s not an ins ur mountable obstacle, even for abort i on docto rs.
ii. AMS’s efforts to o bta in admitting pri vileges
Th e same cannot be sai d of Drs. Chris tensen and Smi th

. Milw aukee has ov er two dozen hospi tals, yet Dr. Smi th only 1 0
atte mpted to apply for admi tting privi le ges at one hospi tal (and had the AMS manager send an i nqui ry emai l to another ). Dr. Chris tensen (wh o had admi tting privi leg es for decades before enter i ng semi -retirement) atte mpted to apply for admit t ing privi leges at two hospi tals, but di d not atte mpt to sati sfy their i nformational requests. In the words of the di stric t court, these “efforts” demonstrate that both doctor s “ f a i l[ed] to exhaust all oppor tuni ties ” to obtain admi tting privi leges. Id. at 987. I a g r e e wi th that asses sment. Mor eov er, whi le both doctor s were s avv y enough to o btai n couns el for the purpose of i ni tiati ng thi s laws ui t, ne i ther di d so to assi st i n their acqui si tion of the admi tting privi leges t his laws ui t seeks to i nvali date. Dkt. 211 at 48 (Dr. Smi th); Dkt. 226 at 45 (Dr. Chris tensen). Despi te plai nti ffs ’ arg um ents to the contrar y, i ndi fference towar ds the law by abort i on prov i ders that results i n an abort i on cli ni c’s potent i al closure does not create an

S e e D i s c o v e r M i l w a u k e e

- M e t r o M i l w a u k e e H o s p i t a l s , 1 0 http:// ww w. d i sc o ve r mi l wa u k e e

. c o m/ he al t hc ar e
- and- fi tness/metro- mil w aukee-hospi tals/ ( l ast v i site d No v . 1 2, 20 15 ).54 No. 15-1736

undu e burden.

IV

I reg ret that today ’s deci si on marks the latest chapter i n our ci rcui t’s co nti nued mi sappli cati on of the Supreme Court ’s abort i on jurisprudenc e. By a major i ty of on e, the court has eli mi nated a measu re that Wi scons i n’s elected offi ci als have enacted to prot ect the health and safety of women who choose
to i ncu r an abort i on. There i s no q ue st i on that Wi scons i n’s admi tting-pri vileges requirement furthers the legiti mat e, rat i onal basi s of prot ecting women’s health and welfare. Among other benefi ts, the requirement promo tes conti nui ty of

care and helps to ensure that a bo r tioni sts are proper ly credentialed and quali fi ed. It also wo r ks i n tandem wi th Wi scons i n’s ultrasound requirement to faci li tate i nformed deci si on-maki ng on the parts of doctor and pati ent ali ke. Nor i s there any i ndi cati on t ha t the requirement would pose a sub stanti al obstacle t o wo men’s abi li ty to acces s abort i on prov i ders i n th e i r area. As Plann ed Parenthoo d’s suc cess ful

a p p l i c a ti on s f or a d m i tt i n g p ri vi l e ge s d e m on s tr ate, the hospi tals of Wi scons i n are perfectly wi lli ng to gr ant admi tting privi leges
to quali fi e d p hy si ci ans who perfor m abort i ons i n their state. Becaus e Wi scons i n’s admi tting-pri vileges requirement has the
rat i onal basi s o f pr omot i ng the hea l t h a nd safety of preg nant

women who have deci ded to i ncu r an abort i on, and becau se i t does not imp ose an undu e burden under Casey , I di ssen t.