Supreme Court Nailing The Coffin On Restrictive Abortion Laws

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Above Photo: Pro-choice and pro-life activists demonstrate on the steps of the United States Supreme Court. Credit: Getty Images

Supreme Court Denies Appeals to Wisconsin and Mississippi Appeals

Note: Common Dreams reports: “According to the Center for Reproductive Rights, similar admitting-privilege requirements—for which the Supreme Court could find no medical justification—are in effect in Missouri, North Dakota, Utah, and Tennessee, and are on hold in Kansas, Louisiana, and Oklahoma. The surgical-center standards that the Court also struck down are in place in Michigan, Missouri, Pennsylvania and Virginia, and are on hold in Tennessee.

‘We are currently looking at all avenues to invalidate those two restrictions in the state of Missouri,’ president and CEO of Planned Parenthood of Kansas and Mid-Missouri Laura McQuade said in a conference call with reporters on Monday.”

Handing down its second major abortion action in as many days, the U.S. Supreme Court refused Tuesday to rescue a Wisconsin law restricting abortion clinics and doctors in the state, leaving in place lower court rulings that had struck it down.

The unsigned order ends a three-year legal fight and was accompanied Tuesday by another rejection of an appeal by Mississippi that sought to reinstate a similar law requiring abortion doctors to be able to admit patients to nearby hospitals.

Wisconsin taxpayers now also face the potential of having to pay perhaps $1 million in attorney fees to abortion clinics, according to one lawyer’s rough estimate.

The latest decision also follows a lengthy ruling Monday striking down similar restrictions on abortion providers in Texas — a decision considered the high court’s most significant ruling on the procedure in a generation.

The court, which has been one justice short since the death of Justice Antonin Scalia, ruled 5-3 that the Texas law’s restrictions go beyond the type permitted under the court’s 1992 ruling in Planned Parenthood vs. Casey. Wisconsin passed similar though less-extensive limits on abortion in 2013 only to see them struck down by a trial court in Madison and by the 7th Circuit U.S. Court of Appeals.

“Today’s decision should send a loud signal to anti-abortion politicians that they can no longer hide behind sham rationales to shut down clinics and prevent a woman who has decided to end a pregnancy from getting the care she needs,” said Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin, which represented an abortion clinic in the Wisconsin case.

University of Richmond law professor Carl Tobias said it would have been nearly impossible for Wisconsin to win its appeal of the 7th Circuit decision in light of Monday’s decision. For that to happen, two Supreme Court justices would have had to change the positions taken in the Texas case — an unlikely scenario.

The decisions this week, Tobias said, will likely lead to more challenges against the scores of abortion restrictions that have been passed by state legislatures like Wisconsin’s since 2011.

“Plaintiffs may also reopen cases raising these issues or file new suits to invalidate laws like Texas has,” Tobias said. “I assume most states will not pass new laws like those in Texas, but some may.”

Wisconsin Attorney General Brad Schimel said in a statement that the Tuesday decision wasn’t surprising in light of the Texas ruling.

“The opinion by the Seventh Circuit Court of Appeals stands and those portions of our law addressed by the decision are now permanently enjoined,” Schimel said.

Taxpayers also could end up paying some of the plaintiff’s legal costs, said Lester Pines, a Madison attorney who represented Planned Parenthood of Wisconsin.

Attorneys have not yet tallied their costs, but they could easily top $1 million because there was a one-week trial, the case twice went to the appeals court and Schimel tried to get the Supreme Court to take it, Pines said.

A spokesman for Schimel had no immediate comment on the legal fees.

Walker Defends Law

Gov. Scott Walker, who signed the law in the summer of 2013, noted that there’s a separate provision in the measure requiring women to undergo ultrasounds prior to an abortion. That provision was not challenged and remains in place.

“We are disappointed that common-sense standards on abortion providers were overturned by an activist court, however we will continue to protect the sanctity of life,” Walker tweeted.

The head of Wisconsin Right to Life, one of the most prominent anti-abortion groups in the nation, said that her state organization remained undeterred by the decision.

“No matter what setbacks we may receive from the Supreme Court, we remain undeterred in our efforts to protect women and unborn children from the abortion industry,” Heather Weininger said.

The provision at issue in the Wisconsin law was challenged by the state’s two abortion providers, Planned Parenthood and Affiliated Medical Services, and was blocked by a court ruling immediately after being approved. It would have required doctors who provide abortions to have admitting privileges at a hospital within 30 miles of where they perform the procedure.

In its 2-1 ruling in November, a panel of the 7th Circuit Court of Appeals in Chicago concluded the medical benefit to the requirement was “nonexistent” and “cannot be taken seriously as a measure to improve women’s health.”

Admitting privileges allow doctors to admit patients to a hospital and treat them there, but privileges are not needed to get a patient into a hospital in emergencies. Wisconsin does not require admitting privileges for doctors who perform other outpatient services, including those that have much higher complication rates than abortion, Judge Richard Posner noted in his decision last year.

In March, Schimel asked the Supreme Court to reinstate Wisconsin’s law.

On Monday, Justice Stephen Breyer ruled for the majority that states like Texas cannot impose restrictions that pose an undue burden on women seeking abortions. The Texas restrictions, which threatened to close all but nine clinics there capable of complying with the tough new standards, would have left that state unable to handle an estimated 65,000 to 70,000 abortions a year.

In the ruling, Breyer directly cited the lawsuit over Wisconsin’s law, saying that state officials here and in Texas could not cite a “single instance in which the new requirement would have helped even one woman obtain better treatment.”

Breyer was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented.

The states had argued that the restrictions — requiring clinics to meet surgical-center operating standards and doctors to have admitting privileges at nearby hospitals — were necessary to protect women’s health. Abortion rights advocates said that by adding delays and distance to the obstacles women face, the medical risks would only rise.