WILLIAM M. CONLEY, District Judge.
INTRODUCTION .........................................................952
BACKGROUND FACTS .....................................................953
I. The Lawsuit ....................................................953
II. Act 37 ........................................................955
A. Overview of Key Provisions .................................955
B. Legislative History ........................................955
C. Timing .....................................................956
III. Overview of Abortion Services ................................956
IV. Current Availability of Abortion Services in Wisconsin ........956
A. State Statistics ...........................................956
B. Plaintiffs' Abortion Services ..............................957
C. Location of Out-of-State Abortions Clinics .................959
V. Overview of Admitting Privileges ...............................959
A. Types .......................................................959
B. Typical Application Process and Timing ......................959
VI. Status of Plaintiffs' Admitting Privileges ....................960
OPINION ..............................................................960
I. Preliminary Matters ............................................960
A. Plaintiffs' Motion to Seal Certain Trial Exhibits ...........960
B. Plaintiffs' Motions to Supplement Record ....................961
II. Fourteenth Amendment Liberty and Privacy Claim ................962
A. Legal Standard .............................................962
B. State Interest/Medical Rationale ...........................964
C. Burdens ....................................................980
D. Balancing Benefits with Burdens ............................993
III. Improper Purpose Claim .......................................994
IV. Nondelegation Doctrine Claim ..................................996
V. Equal Protection/Substantive Due Process Claims ................997
ORDER ................................................................998
For reasons left largely unexplained at the time of its enactment, the Wisconsin Legislature passed and Governor Walker signed, Section 1 of 2013 Wisconsin Act 37 ("the Act"), requiring every physician who provides abortions in Wisconsin to have admitting privileges at a hospital within thirty miles of the health center where the abortion is performed. After finding that this requirement likely violated the liberty and privacy rights of plaintiffs' patients under the Fourteenth Amendment of the United States Constitution, this court entered a preliminary injunction on August 2, 2013, enjoining its enforcement. After affirming the entry of that injunction, the Seventh Circuit remanded this case for an
In light of the evidence presented by both sides at trial, the court now finds that the marginal benefit to women's health of requiring hospital admitting privileges, if any, is substantially outweighed by the burden this requirement will have on women's health outcomes due to restricted access to abortions in Wisconsin. While the court agrees with the State that sometimes it is necessary to reduce access to insure safety, this is decidedly not one of those instances. On the robust trial record, the court is, if anything, more convinced that the admitting privileges requirement in Act 37 "remains a solution in search of a problem," Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465wmc, 2013 WL 3989238, *14 (W.D.Wis. Aug. 2, 2013), unless that problem is access to abortion itself. In particular, the State has failed to meet its burden of demonstrating through credible evidence a link between the admitting privileges requirement and a legitimate health interest.
For the reasons explained in this opinion below, therefore, the court finds Section 1 of Act 37 violates liberty and privacy rights of plaintiffs' patients under the Fourteenth Amendment of the United States Constitution. The court further finds that the sudden adoption of a requirement for admitting privileges without a time period allowed to achieve compliance compels a finding that its purpose was to impose a substantial obstacle on women's right to abortions in Wisconsin, also in violation of their Fourteenth Amendment rights. As for those claims directed at plaintiffs' own rights under the Fourteenth Amendment, the court finds no rational reason to treat physicians who perform abortions differently from those who regularly perform equally or more risky outpatient procedures. Finally, the court finds that the Act violates the non-delegation doctrine by leaving to private hospitals the authority to deny admitting privileges for reasons other than a physician's competence without any means for appeal.
Accordingly, the court declares Section 1 of Act 37 unconstitutional and will enter an order permanently enjoining the enforcement of the Act. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (loss of constitutional "freedoms. . . unquestionably constitutes irreparable injury"); Preston v. Thompson, 589 F.2d 300, 303 (7th Cir.1978) ("The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.").
In this lawsuit, plaintiffs Planned Parenthood of Wisconsin, Inc. ("PPW"); Susan Pfleger, M.D., a PPW physician; Kathy King, M.D., PPW's Medical Director; and Milwaukee Women's Medical Services d/b/a Affiliated Medical Services ("AMS") assert various constitutional challenges to the Act against defendants, the Attorney General of the State of Wisconsin, the Dane County District Attorney (as a representative of a class of DAs), the Secretary of the Department of Safety and Professional Services and members of the Medical Examining Board. At times, the court refers collectively to defendants as "the State."
On remand from the Seventh Circuit, the court held a bench trial, which included a neutral expert, Dr. Serdar Bulun, Chair of the Department of Obstetrics and Gynecology at Northwestern University Feinberg School of Medicine, appointed by the court on the recommendation of the Seventh Circuit. On the third day of trial, the court held a colloquy between Dr. Bulun, plaintiffs' expert Dr. Douglas Laube, and defendants' expert Dr. John Thorp, Jr. The primary focus of the colloquy was on complications arising from abortion, the relative safety of abortion, and the role admitting privileges might play in furthering care of women during and after abortions. Following this colloquy, the court gave the parties an opportunity to cross-examine Dr. Bulun on any matter, including the concise written responses to questions posed by the court previously provided to the parties and made a part of the trial record. (Tr. Ex. 500.) The court then heard testimony from the parties' principal experts, as well as from named individual plaintiffs Drs. King and Pfleger, PPW's CEO Teri Huyck, AMS's two owners, Drs. Christiansen and Smith (through his deposition), several additional experts and other witnesses on the same subjects.
The primary focus of the trial and of the parties' efforts to date has been on patients' Fourteenth Amendment liberty and privacy claim.
Section 1 of 2013 Wisconsin Act 37, codified at Wis. Stat. § 253.095, provides in pertinent part:
Any person who violates the Act is subject to civil forfeiture penalties of between $1,000 and $10,000. Wis. Stat. § 253.095(3). The Act also provides that any physician performing or attempting to perform an abortion without admitting privileges (or otherwise in violation of the Act) could be subject to civil suits for damages for "personal injury and emotional and psychological distress." Wis. Stat. § 253.095(4). Such suits may not only be brought by a "woman on whom an abortion is performed or attempted," but by the "father of the aborted unborn child or the unborn child that is attempted to be aborted," or any "grandparent of the aborted unborn child or the child that is attempted to be aborted." Id. Finally, physicians violating the Act may face investigation and professional discipline up to and including license revocation. Wis. Stat. § 448.02(3); Wis. Admin. Code MED § 10.02(2)(z).
The Act was proposed to its legislative sponsor Senator Mary Lazich by representatives of Wisconsin Right to Life. (Joint Stip. (dkt. #200) ¶¶ 21, 35; Affidavit of Laura D. Rose ("Rose Aff."), Ex. A (dkt. #49-1) 1; 5/28/14 Trial Tr. (dkt. #233) 12425 (Merrill testifying that he proposed the admitting privileges requirement to Wisconsin Right to Life, who then forwarded his email to Senator Lazich who sponsored the bill).)
The Act was opposed by the state's leading medical and public health associations, including the Wisconsin Medical Society, the Wisconsin Section of the American Congress of Obstetricians and Gynecologists, the Wisconsin Association of Local Health Departments and Boards, the Wisconsin Academy of Family Physicians, the Wisconsin Hospital Association, and the Wisconsin Public Health Association. (5/29/14 Trial Tr. (dkt. #244) 139 (Laube); Joint Stip. (dkt. #200) ¶ 23; Rose Aff., Ex. A (dkt. #49-1) 11.) The Medical Examining Board did not propose, recommend, support or advocate for the legislation, and no member of the Wisconsin legislature or legislative aide consulted with or sought the advice of the Medical Examining Board as to any medical need or benefit of requiring physicians performing abortions to have admitting privileges at a hospital. (Ex. 22 at Nos. 4-6.) There was also no documented medical need or purpose for the Act when presented to the legislature, and the only physician who provided testimony regarding the Act testified against it. (Joint Stip. (dkt. #200) ¶ 18; Affidavit of Jeffrey R. Renk ("Renk Aff."), Ex. A (dkt. ##48-1) (listing Dr. Tosha Weterneck of the Wisconsin Medical Society as against the bill).)
Not unlike some other controversial legislation in Wisconsin of late, the Act was passed precipitously. First introduced as 2013 Senate Bill 206 in the legislature on June 4, 2013, a hearing was held on the Act in front of the Committee of Health and Human Services the next day. The Bill was then passed by the Senate on June 12, and by the Assembly on June 13, presented to the Governor on July 3, signed by him into law on Friday, July 5, and would have taken effect three days later on Monday, July 8, 2013, but for this court's injunction. (Joint Stip. (dkt. #200) ¶ 18; Renk Aff., Exs. A, B (dkt. ##48-1, 48-2).)
Nationally, over 90% of abortions are performed in an outpatient setting. (5/27/14 Trial Tr. (dkt. #243) 104 (King); Ex. 27 at ¶ 8.) There are two types of abortions: medication (or medical) abortions and surgical abortions. The former involves administration of two medications, Mifepristone and Misoprostol, to induce an abortion. (Ex. 50 (Expert Report of Douglas Laube, M.D. ("Laube Rept.")) ¶ 3.) The patient takes Mifepristone in the clinic, which terminates the pregnancy, and takes Misoprostol at home approximately 24 to 48 hours after the visit in the clinic, which causes her uterine to contract and expel its contents. (5/27/14 Trial Tr. (dkt. #243) 105 (King); Ex. 50 (Laube Rept.) ¶ 3.)
Surgical abortion involves the use of instruments to evacuate the contents of the uterus. (5/27/14 Trial Tr. (dkt. #243) 105 (King).) There are two kinds of surgical abortion: aspiration or surgical suctioning abortion and dilation and evacuation abortion. (5/27/14 Trial Tr. (dkt. #243) 26 (Ashlock).) The procedure is short in duration, lasting five to eight minutes in the first trimester, but up to 20 minutes for a late second-trimester procedure. (5/27/14 Trial Tr. (dkt. #243) 160-61 (King).) A surgical abortion involves no incision into the woman's skin or other bodily membrane. (Id. at 105.) First trimester surgical abortions are nearly identical to diagnostic dilation, curettage and surgical completion of miscarriage. (Ex. 50 (Laube Rept.) ¶ 5.) Second-trimester abortions are similar to hysteroscopies, a gynecological procedure that assesses "the cavity of the uterus through a small, pencil-sized endoscope so that one can visualize the inside of the uterine cavity." (5/29/14 Trial Tr. (dkt. #244) 132-33 (Laube); Ex. 50 (Laube Rept.) ¶ 6.)
Pursuant to state statute, "each hospital, clinic or other facility in which an induced abortion is performed" must report selected information on every patient who has obtained an induced abortion in Wisconsin. Wis. Stat. § 69.186(1). (Joint Stip. (dkt. #200) ¶ 7.) By statute, the Wisconsin Department of Health Services ("DHS") is also required to publish annual demographic summaries of the information reported. Wis. Stat. § 69.186(2). The parties have provided reports for 2009 through 2012. (See Joint Stip. (dkt. #200) ¶¶ 8-12; Exs. 1088-91.)
According to these reports, the vast majority of abortions occur in the first trimester. In Wisconsin in 2012, 83% of abortions occurred at or before 12 weeks of
There are currently four clinics in Wisconsin where women can obtain abortions.
AMS provides medication abortions to ten weeks IMP, and surgical abortions to 22 weeks IMP, and infrequently beyond 22 weeks on a limited case-by-case basis. (5/27/14 Trial Tr. (dkt. #243) 27 (Ashlock); 5/29/14 Trial Tr. (dkt. #244) 221 (Christiansen testifying that AMS provides surgical abortions up to 24 weeks).)
Dr. Dennis Christiansen is 50% owner of AMS and the associated medical director. (5/29/14 Trial Tr. (dkt. #244) 172 (Christiansen).) Having retired (or at least attempted to retire), he currently provides abortions at AMS on an occasional basis. (Id.) He is a board-certified obstetrician and gynecologist, and has been on the clinical faculty at the University of Wisconsin Medical School since 1993, where he taught residents in the ob-gyn and family practice programs to perform abortions. (Id. at 173, 175; Ex. 13.)
Dr. Christiansen has been providing abortions in Wisconsin since 1977. (Id. at 251.) In 1980, Dr. Christiansen established the Madison Abortion Clinic which he ran until he donated the clinic to Planned Parenthood in 2008. (Id. at 173.) Dr. Christiansen also operated abortion facilities in Rockford, Illinois and Niles, Michigan. (Id.) Over the course of his career, he has performed over 85,000 abortions. (Id. at 180.) During that same period, Dr. Christiansen estimates that he has transferred 50 patients to the hospital for emergency treatment. (Id. at 181.)
Planned Parenthood of Wisconsin provides comprehensive outpatient reproductive health care services, including abortion services, to thousands of women in Wisconsin each year. (5/27/14 Trial Tr. (dkt. #243) 296 (Huyck).) PPW has been providing health care services since 1935, and at the time of trial, provided those services at 23 health centers in Wisconsin. (Id.)
Plaintiff Kathy King is the Medical Director of PPW. (5/27/14 Trial Tr. (dkt. #243) 90 (King).) She is a licensed Wisconsin physician and board-certified obgyn with over 10 years of experience. (Id. at 90-91; Ex. 59.) Dr. King is an Assistant Professor of Obstetrics & Gynecology at the Medical College of Wisconsin. (5/27/14 Trial Tr. (dkt. #243) 90-91 (King); Ex. 59.) She has admitting privileges at Froedtert Hospital and Children's Hospital of Wisconsin in Milwaukee, and recently obtained admitting privileges at a hospital near the Appleton North health center. (Ex. 59; Joint Stip. (dkt. #200) ¶ 6.) Dr. King provides abortion services approximately four days a month at PPW's Milwaukee-Jackson clinic. (5/27/14 Trial Tr. (dkt. #243) 102 (King).) Given her medical director role at PPW, along with her practice at the Medical College of Wisconsin and Froedtert, Dr. King does not
Dr. Susan Pfleger is also a board-certified ob-gyn, who works at PPW between one and three days per week, providing counseling pre-abortion, abortion services and insertion of contraception devices post abortion. (5/27/14 Trial Tr. (dkt. #243) 182, 184-85 (Pfleger).) Dr. Pfleger began working for PPW in 2000 and was its medical director for approximately five to six years. (Id. at 185.) Dr. Pfleger currently provides services at the Milwaukee-Jackson clinic. (Id.) Over the course of her career, Dr. Pfleger has performed approximately 15,000 abortions. (Id. at 187.)
In addition to King and her co-plaintiff Pfleger, there are four other physicians (identified as Dr. P1, Dr. P2, Dr. P3, and Dr. P5) providing abortion services at PPW's health clinics. (Joint Stip. (dkt. #200) ¶¶ 2, 3, 5, 6.)
There are abortion clinics in Minnesota, Illinois and Michigan. (5/27/14 Trial Tr. (dkt. #243) 170 (King).) Within legal limits, a clinic in Chicago provides abortions to the end of the 23rd week. (Id.)
A physician with admitting privileges at a particular hospital may admit patients and direct their care, as would a member of the hospital staff. Hospital staff membership and privileges, including admitting privileges, are governed by each hospital's bylaws. Most hospitals have different categories of privileges, some of which allow admission of patients, while other categories do not. For example, while defendant's expert Dr. Geoffrey Keyes described certain strategies for physicians with low or no volume of hospital patients, his suggestion that physicians attempt to obtain "refer and follow privileges" would not satisfy the requirements of Act 37, because those privileges do not allow a physician to admit patients. (5/27/14 Trial Tr. (dkt. #243) 254 (Keyes); Deposition of Rita M. Hanson, M.D. ("Hanson Depo.") (dkt. #210) 19.)
Plaintiffs submitted the deposition testimony of Rita Hanson, M.D., Chief Medical Officer for Wheaton Franciscan Healthcare. (Hanson Depo. (dkt. #210).) In
After these verifications are completed, the applicant is typically invited to interview with the chair of the department, although the chair can waive the interview if he or she is already familiar with the applicant. (Id.) There may also be interviews with the academic chair and with the credentials committee chair. (Id. at 12.) Should the applicant pass the interview hurdle, the application would then go to the credentials committee, which reviews all of the materials collected by the medical staff office and forms from any interviews in light of the type of privileges requested. (Id. at 13.) The credentials committee then makes a recommendation to the medical executive committee, which in turn makes a recommendation to what Wheaton refers to as the "Tier 3 Board," consisting of the hospital leadership and members of the community. (Id. at 13-14.) If the Tier 3 Board approves, privileges are granted; however, if denied, there is no appeal process. (Id. at 15.)
As discussed below in greater detail, PPW physicians were successful in securing admitting privileges in Milwaukee and Appleton. (Joint Stip. (dkt. #200); ¶¶ 3, 6; Ex. 98.) AMS's two physicians, Drs. Christiansen and Smith, did not have admitting privileges at a hospital within 30 miles of AMS at the time the Act was passed, nor apparently were they able to obtain such privileges by the time of trial.
There are two preliminary set of motions that must be addressed before the court turns to the merits.
Plaintiffs seek to seal certain documents containing excerpts of PPW manuals outlining its protocols for operation because they contain proprietary and sensitive business information. (Pls.' Mot. to Seal (dkt. #224).) The documents were marked as confidential pursuant to the protective order entered in this case, and the protective order further provides that documents designated confidential will be sealed if used at trial. (Dkt. #105-1.) While the court questions whether these documents contain the kind of "highly sensitive" competitive information warranting sealing, see Formax Inc. v. Alkar-Rapidpak-MP Equip., Inc., No. 11-C-0298, 2014 WL 792086, at *3 (E.D.Wis. Fed. 25, 2014), the court nonetheless is persuaded that these materials contain trade secrets, as defined under Wisconsin law, Wis. Stat. § 134.90(c). Accordingly, the court will grant plaintiffs' motion and order that Exhibits 32, 36, 37 and 38 remain under seal.
Also before the court are two motions by plaintiffs to supplement the trial record. "[A] motion to reopen to submit additional proof is addressed to [the court's] sound discretion." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (citing Swartz v. N.Y. Central R. Co., 323 F.2d 713, 714 (7th Cir.1963)); see also Fed.R.Civ.P. 59(a)(2) (providing that the court may take additional testimony after a nonjury trial). In the first motion, plaintiffs seek to include three categories of exhibits. (Dkt. #247.) First, plaintiffs seek to include additional materials related to hospital staff privileges obtained by subpoena, which are related to other hospital materials already the subject of a stipulation between the parties. The court will grant this request in light of the parties' stipulation and as unopposed by defendants. Accordingly, exhibits 1A-1F attached to the declaration of Renée Paradis (dkt. #250-1) are admitted as Exhibit 97.
Second, plaintiffs move to admit discovery responses by defendant Dave Ross, Secretary of the Wisconsin Department of Safety & Professional Services, and defendant Kenneth B. Simons, Chairperson of the Medical Examining Board of the State of Wisconsin, in which they both represent that neither agency nor organization has investigated or, in the case of the Medical Examining Board, taken disciplinary action against, a physician performing abortion services in the last five years. These discovery responses were identified before trial as Exhibits 21 and 22, and defendants interposed no objection as called for by the court's pretrial procedure. Plaintiffs explained that they intended to move these exhibits into the record formally during the trial but inadvertently failed to do so. Although aware of plaintiffs' intent to enter these discovery responses into the record without objection, defendants now oppose plaintiffs' request on the basis that they had ample opportunity to do so at the trial. While the court agrees that plaintiffs should have formally moved for their admission, plaintiffs' failure to do so here is excusable given the volume of exhibits and the speed with which the trial advanced. More importantly, defendants are in no way prejudiced by the exhibits admission. Nor can defendants claim surprise given that the exhibits are discovery responses they provided and not only understood could but would be used against them at trial. Accordingly, the court will grant plaintiffs' second request as well. Exhibits 21 and 22 are formally admitted.
Third, plaintiffs seek leave to supplement the record with letters to and from Milwaukee area hospitals concerning Drs. Smith and Christiansen's eligibility for privileges, which were only collected after trial. Defendants object to plaintiffs' request, arguing that: (1) the evidence is untimely; (2) plaintiffs fail to explain why these documents could not have been obtained before the close of trial; and (3) defendants would be prejudiced by the admission of the evidence because they had no opportunity to challenge the offered document, including hearsay statements by physicians or the hospital credentialing members, to examine its authors, or to present counterevidence. (Defs.' Opp'n (dkt. #251) 2-3.) On this, the court agrees with defendants. Any correspondence of this type could and should have been obtained sooner and moved into evidence during trial. Accordingly, the court will deny plaintiffs' request to supplement the trial record with correspondence concerning Drs. Smith and Christiansen's eligibility for admitting privileges in Milwaukee-area hospitals.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the United States Supreme Court observed that a "woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)]. It is a rule of law and a component of liberty we cannot renounce." Id. at 871, 112 S.Ct. 2791. In Casey, the Court also specifically addressed the source of this liberty interest:
Id. at 852, 112 S.Ct. 2791. Still, the Supreme Court held in Casey and in subsequent cases, this liberty interest is not absolute.
In affirming this court's entry of a preliminary injunction in this case, the Seventh Circuit set forth the applicable test for determining whether a regulation directed at women's health constitutes an undue burden:
Van Hollen III, 738 F.3d at 798 (citing Casey, 505 U.S. at 874, 877, 900-01, 112 S.Ct. 2791; Stenberg v. Carhart, 530 U.S. 914, 930, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Mazurek v. Armstrong, 520 U.S. 968, 972-73, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)).
Notably, in Abbott II, the Fifth Circuit criticized the Seventh Circuit's directive, rejecting any requirement by the State to prove through evidence that the admitting privileges requirement will make abortions safer. 748 F.3d at 596.
As this court explained in its preliminary injunction opinion, unlike cases where courts have considered a regulation adopted to respect the potential life of the unborn or to further the integrity and ethics of the medical community, see, e.g., Gonzales v. Carhart, 550 U.S. 124, 157, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), "there is no other legitimate state interest or interests at play [in this case,] which would counter-balance any arguable uncertainty in the medical community as to the medical rationale underlying this regulation." Van Hollen II, 2013 WL 3989238, at *15 & n. 29 (discussing Tucson Woman's Clinic v. Eden, 379 F.3d 531 (9th Cir.2004)). Accordingly, the court must balance health
Indeed, the Supreme Court appears more willing to treat skeptically and strike down state regulations purportedly aimed at the health of women where the evidence of such a requirement is lacking. See, e.g., City of Akron v. Akron Ctr. for Repro. Health, Inc., 462 U.S. 416, 434-39, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (holding that requirement that second trimester abortions be performed in a hospital infringed on women's right to abortion because the medical evidence did not support such a requirement and requiring hospitalization places a significant obstacle in the path of women seeking an abortion), overruled on other grounds by Casey, 505 U.S. 833, 112 S.Ct. 2791; Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 482, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (invalidating a similar hospitalization requirement); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 76-79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (striking down a state regulation prohibiting the use of saline in abortion procedures because it "fails as a reasonable regulation for the protection of maternal health," rejecting the state's argument that the Court should defer to "substantial supporting medical evidence," finding that the prohibition "comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks"). Consistent with these Supreme Court holdings and the Seventh Circuit's directive, the court's role in weighing the benefits of a regulation purportedly adopted to further the health of women seeking abortions against the regulation's burden on those same women is more straightforward than trying to weigh that burden against so-called "persuasion" regulations or those directed at protecting the integrity of the medical community.
Since the State contends that the admitting privileges requirement at issue is reasonably directed to the health of women seeking abortions, it has the burden of demonstrating this link. See Akron, 462 U.S. at 430, 103 S.Ct. 2481, overruled on other grounds by Casey, 505 U.S. 833, 112 S.Ct. 2791 (describing the burden as that of the state); Doe v. Bolton, 410 U.S. 179, 195, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (same); see also Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330, 1340-41 (M.D.Ala.2014) (describing holding in Doe as requiring "more than general statements of concern and claims that the regulations conceivably might, in some cases, lead to better health out-comes; rather the Court required the State to establish, through evidence, that the regulation really was strongly justified"); Van Hollen III, 738 F.3d at 798 (requiring evidence that "the medical grounds are legitimate").
Similarly, the Gonzales Court emphasized that the Court "did not . . . place dispositive weight on Congress' findings." Gonzales, 550 U.S. at 165, 127 S.Ct. 1610. Instead, "[t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." Id. As the Seventh Circuit had previously explained, this requires the district court to "undertake an individualized factual inquiry based on the record before it in determining whether the challenged abortion restriction imposes an undue burden."
In determining whether the admitting privileges regulation is reasonably related to a legitimate medical reason, the court's inquiry at trial principally considered the following questions: (i) are admitting privileges required for other outpatient procedures; (ii) how safe is abortion, especially as compared to similar outpatient procedures and childbirth; and (iii) would the admitting privileges requirement further women's health?
At trial, defendants conceded that an admitting privileges requirement has never been imposed on any outpatient procedure other than the provision of abortion services. Indeed, the parties submitted a joint stipulation prior to trial where defendants concede that "[t]he State of Wisconsin does not require physicians who provide surgery at ambulatory surgery centers or in other outpatient settings to have hospital admitting privileges." (Joint Stip. (dkt. #200) ¶ 14.)
Still, defendants offered the testimony of Dr. Geoffrey Keyes, President of the American Association for the Accreditation of Ambulatory Surgery Facilities, Inc., ("Quad A"), that Act 37 "conforms to existing standards of care for accrediting ambulatory surgical facilities." (Ex. 1075 (Expert Rept. of Geoffrey R. Keyes, M.D. ("Keyes Rept.")) ¶ 1.) In addition to the most glaring difference—that this standard applies to all medical procedures (rather than just abortions)—Quad A's standards concerning admitting privileges requirement in securing accreditation differs from Act 37's requirement in at least three important respects. (5/27/14 Trial Tr. (dkt. #243) 246 (Keyes).) First, the standards require that physicians hold "or demonstrate that they have held" admitting privileges, allowing at least for the possibility that lapsed admitting privileges could satisfy the requirement. (5/27/14 Trial Tr. (dkt. #243) 246 (Keyes); Ex. 96 at A116.) Second, the standards provide for an exception or waiver if a physician "can demonstrate the loss or inability to obtain such privileges was not related to lack of clinical competence, ethical issues, or problems other than the economic competition." (Id.) Third, the standards allow for a "signed and dated document from a person in the same specialty who has admitting privileges in a hospital within 30 minutes of the facility that indicates their willingness to admit the patient to the hospital" as an alternative. (5/27/14 Trial Tr. (dkt. #243) 248 (Keyes); Ex. 96 at A116.)
Defendants also offered the testimony of Eric Ostermann, Executive Director of the Association of Wisconsin Surgery Centers,
Indeed, defendants' evidence is entirely consistent with the medical practice guidelines adopted by both the American College of Obstetricians and Gynecologists ("ACOG") and the National Abortion Federation ("NAF"), requiring physicians who provide abortions in outpatient settings to make arrangements for treatment of those patients experiencing complications. (Ex. 50 (Laube Rept.) ¶ 18.) In short, abortion procedures have been quite intentionally singled out for disparate regulation.
Since an admitting privileges requirement is unique to abortion, the next logical question is whether there is a reason to treat abortion differently in light of the State's purported justification, namely the health of women seeking this outpatient procedure.
As described above, the court engaged the neutral expert and principal experts for each side in a colloquy on the third day of trial in an attempt to reach a consensus where possible on several pertinent issues, primarily concerning the safety—relative and otherwise—of abortion and the role of admitting privileges in furthering the health of women experiencing complications from abortions. The court-appointed expert, Dr. Serdar E. Bulun, John J. Sciarra Professor and Chair of the Department of Obstetrics and Gynecology, Northwestern University Feinberg School of Medicine, has been board-certified in obgyn since 1994, is licensed to practice medicine in Illinois, Texas and New York, and has been on staff at Northwestern Memorial Hospital since 2003. (Ex. 500.) The court chose Dr. Bulun because of his expertise and qualifications in obstetrics and gynecology, insights into the credentialing process in light of his position as chair of the ob-gyn department at Northwestern, his lack of involvement in this particular lawsuit (or even to Wisconsin), and his general neutrality on issues surrounding abortion rights. Prior to trial, with the input of the parties, the court posed eight questions to Dr. Bulun and requested that he respond in writing after reviewing the parties' principal expert reports. Those responses were circulated to the parties before trial, admitted into evidence and guided the expert colloquy. (Ex. 500.)
Plaintiffs designated Dr. Douglas Laube to participate in the colloquy. Dr. Laube is also a board-certified ob-gyn since 1976 and has been practicing obstetrics and gynecology for 43 years, providing a range of outpatient and hospital services, including in the past abortion services. (Ex. 50 (Expert Report of Douglas Laube, M.D. ("Laube Rept.")) ¶ 2.) Dr. Laube has taught at the University of Wisconsin Medical School for 21 years (including 13 years as the Department's chair), and served as past president of the American
Defendants' designated expert is Dr. John Thorp, Jr., a board-certified ob-gyn since 1991, with a board-certified sub-specialty in maternal-fetal medicine since 1992. (Ex. 1058 (Expert Report of James Thorp, Jr., M.D., M.H.S. ("Thorp Rept.")).) Dr. Thorp is a Professor in the Department of Maternal and Child Health and in the Department of Epidemiology, both in the School of Public Health at the University of North Carolina School of Medicine and is a Professor in the Department of Epidemiology at the School of Public Health and Tropical Medicine at Tulane University. (Id.) Dr. Thorp is also the Interim Director of the Center for Women's Health Research at UNC. (Id.)
The types of complications associated with abortions vary somewhat by the type of procedure used. For medication abortions, complications may include adverse reaction to one of the medications, bleeding, infection, failed or incomplete abortion, and very rare risk of death. (Ex. 50 (Laube Rept.) ¶ 3; 5/27/14 Trial Tr. (dkt. #243) 160 (King).) For surgical abortions, complications include an adverse reaction to one of the sedation medications, bleeding, infection, incomplete abortion, and injury to the cervix or uterus, and a very rare risk of death. (Ex. 50 (Laube Rept.) ¶ 4; 5/27/14 Trial Tr. (dkt. #243) 159 (King).)
In determining complication rates for abortions, the court primarily relies on two recent, large-scale and peer reviewed studies conducted here in the United States. The first study reviewed outcomes in 233,-805 medication abortions, and found that less than 0.65% of patients experienced a complication and that six out of 10,000 (or 0.06%) experienced a complication requiring hospitalization. (Ex. 50 (Laube Rept.) ¶ 9 (citing Kelly Cleland et al., Significant Adverse Events and Outcomes After Medical Abortion, 121 Obstetrics & Gynecology 166, 169 (2013)).) The second study also from 2013 reviewed outcomes in 11,487 first-trimester surgical abortions, and found that 1.27% of patients experienced minor complications requiring outpatient treatment, and six (or 0.052%) experienced a major complication (a category that included hospital admission). (Ex. 50 (Laube Rept.) ¶ 9 (citing Tracy Weitz et al., Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified
In his report, Dr. Bulun relied on complication rates from older studies. A 1970s multicenter study of 84,000 abortions, reported rates of serious complications comparable to those reported in the more recent studies cited above.
Notably, Dr. Bulun's data demonstrates an increase in complication rates by gestation. Dr. Laube agreed that "the complication rate from second-trimester abortion, especially late second-trimester abortion, is significantly more than with first trimester." (5/29/14 Trial Tr. (dkt. #244) 46 (Laube).) For example, the risk of perforating the uterus is higher at 16 weeks or later than it is during a first trimester or an earlier second trimester abortion, because an instrument needs to introduced into the uterus rather than relying on suction to complete the abortion. (5/27/14 Trial Tr. (dkt. #243) 225-27 (Pfleger).)
By comparison, the risk of death associated with childbirth in the United States is approximately 14 times higher than that associated with abortion, and women are more likely to experience complications from live births than from having abortions. (Ex. 50 (Laube Rept.) ¶ 7 (citing Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion & Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (Feb.2012)).) The risk of death related to abortion overall is less than 0.6 deaths per 100,000 procedures, which equates to a mortality rate of 0.0006%. (Ex. 50 (Laube Rept.) ¶ 7 (citing David A. Grimes, Estimation of Pregnancy-Related Mortality Risk by Pregnancy Outcome, United States, 194 Am. J. Obstetrics & Gynecology 92, 93 (2006)).) The comparable risk of death for childbirth is 8.8 out of 100,000 births or a mortality rate of 0.0088%. Raymond & Grimes, supra at 216.
In response, defendants' expert Dr. Thorp asserts in his report that the "[c]omplication rate ranges from 2 to 10%, with most complications being managed without major surgery." (Ex. 1058 (Thorp Rept.) ¶ 20.) In his testimony, Dr. Thorp corrected the statement to say that it should be .2% to 10% (emphasis on the decimal before the 2). (5/29/14 Trial Tr. (dkt. #244) 96 (Thorp).) While Dr. Thorp failed to cite any support in his report for this extremely broad variation in probable outcomes range, during his testimony he explained that the complication rate range comes from a piece he authored published in Scientifica. (Id. at 99-100.) As with his report in this case, his article also erroneously provided the 2% to 10% range, but Dr. Thorp stated that he submitted an erratum to correct the range to reflect .2% to 10%. (Id. at 99.) On cross-examination,
While the court places no weight on the complication range provided by Dr. Thorp, the court has nonetheless considered the criticisms Dr. Thorp raised about the studies relied on by plaintiffs and the court-appointed expert. Dr. Thorp's main criticism, consistent with that of defendants' other experts, is that abortion complications are underreported. (See also Ex. 1072 (Expert Report of James G. Linn, M.D. ("Linn Rept.")) ¶ 3.) First, Dr. Thorp takes issue with any statement that abortion is safer than childbirth, because abortion-related deaths, collected by the CDC, are underreported due to poor data collection and a shorter window for reporting such deaths. (Ex. 1058 (Thorp Rept.) ¶ 14; 5/29/14 Trial Tr. (dkt. #244) 11-13 (colloquy).) In contrast, Dr. Thorp contends that "[p]regnancy-related deaths are systemically sought and investigated by state government sponsored commissions and the majority of states formally link birth certificates to death certificates." (Ex. 1058 (Thorp Rept.) ¶ 14.) As support, Dr. Thorp points to data from Scandinavian countries, where each patient has a unique identifier number and all health events are recorded around that number, showing higher death rates from abortion than studies of the United States. (5/29/14 Trial Tr. (dkt. #244) 17 (colloquy); Ex. 1058 (Thorp Rept.) ¶¶ 15, nn. 20-22.) From this, Dr. Thorp "estimates" the death rate from abortion to be between "10 to 20" out of 100,000, comparable to childbirth. (5/29/14 Trial Tr. (dkt. #244) 18-19 (colloquy).) Both Dr. Laube and Dr. Bulun reject the notion that the United States' data is as underreported as Dr. Thorp claims, relying on the studies cited above which show about 1 death out of 100,000 abortions. (5/29/14 Trial Tr. (dkt. #244) 30 (colloquy).) Moreover, both doctors agree that the CDC data is reliable, given the practical constraints for all such studies. (5/29/14 Trial Tr. (dkt. #244) 15, 34 (colloquy).) Dr. Henshaw, a former senior fellow with the Guttmacher Institute, similarly testified that the "abortion mortality is very . . . accurately documented by the Centers for Disease Control." (5/30/14 Trial Tr. (dkt. #234) 11 (Henshaw).)
While the court credits some amount of underreporting, Dr. Thorp's perception that deaths due to abortions are "significantly underreported" lacks any support in
Second, Dr. Thorp is critical of other studies concerning complications that derive their data from the Guttmacher Institute. In addition to his criticism about the self-reporting nature of that data, Dr. Thorp criticizes the reliability of the Guttmacher Institute data given its affiliation with Planned Parenthood. (Ex. 1058 (Thorp Rept.) ¶¶ 7, 8.) As Dr. Henshaw testified, the Guttmacher Institute does not try to collect information on complications, rather the Guttmacher Institute relies on clinical studies focused on tracking complication rates. (5/30/14 Trial Tr. (dkt. #234) 11 (Henshaw).) Moreover, the court is inclined to credit Dr. Henshaw's testimony that the research department is sufficiently separate from the policy and public affairs departments, not to be swayed as to empirical outcomes of dedicated research studies. (Id. at 43.) At most, Dr. Thorp's own documented bias cancel's out Dr. Henshaw's testimony, leaving the court with Dr. Bulun's more objective conclusions.
Accordingly, the court finds that while there may be some amount of underreporting, the overwhelming evidence demonstrates that abortion is safe, especially in the first trimester when the vast majority of abortions are performed nationwide and in Wisconsin, the rates of complications are very low, and the morbidity rate is exceedingly low, especially as compared to the risk of death from childbirth. Even if there is underreporting of complications due to self-reporting by physicians, this would appear to ring true for outpatient procedures generally, not just abortions.
Abortions (both first and second trimester, and even post-16 week second trimester abortions) are safer or comparable in safety to other outpatient procedures. For example, operative colonoscopy has a complication rate of 5%, with major events requiring hospitalization in 2% of procedures. (5/29/14 Trial Tr. (dkt. #244) 35-36 (colloquy); Ex. 500 at p. 3.) Egg retrieval for in vitro fertilization carries a severe complication rate of 0.72%. (Ex. 500 at p. 3.) Diagnostic or operative hysteroscopy has a hospitalization rate ranging from 0.1 to 0.33%. (Id.) Abortion is also comparable in safety or safer to that of a vasectomy, which has a complication rate of 1 to 3%. (5/29/14 Trial Tr. (dkt. #244) 134 (Laube).)
During the colloquy, Drs. Bulun and Laube similarly testified to abortion being as safe as other outpatient gynecological procedures like cervical biopsies, endometrial biopsies, IUD insertions, and LEEP procedures, all of which routinely take place in the outpatient setting.
Plaintiffs' own data and experience dealing with complications is consistent with the general statistics provided by plaintiffs' experts and the neutral expert. In particular, the vast majority of complications due to abortions are handled in the clinic setting, and do not require transfer to a hospital. (5/27/14 Trial Tr. (dkt. #243) 109, 112 (King).) In reports submitted to the National Abortion Federal, plaintiff AMS reported 39 patients experiencing complications in 2010, representing 1.51% of the total abortions performed; 10 patients in 2011, representing 0.46%; and 8 patients in 2012, representing 0.34%. (5/27/14 Trial Tr. (dkt. #243) 31-32 (Ashlock); Ex. 2.) Wendy Ashlock, the Director of AMS, testified that the percentage of complications at AMS has consistently been less than 2%. (5/27/14 Trial Tr. (dkt. #243) 32 (Ashlock).) From 2009 to the date of trial, AMS transferred a total of 8 patients directly to a hospital from AMS (2
Of the approximately 8,400 abortions PPW has provided at its Milwaukee-Jackson health center in the last five years, PPW has transferred only four patients to the hospital for treatment related to an abortion complication. (5/27/14 Trial Tr. (dkt. #243) 115-16 (King); Ex. 31.) Of the approximately 5,000 abortions provided at the Appleton North clinic in the same period of time, only one patient was transferred to a hospital for treatment. (5/27/14 Trial Tr. (dkt. #243) 116 (King); Ex. 31.)
According to Wisconsin's own 2012 Reported Induced Abortions figures, there were 13 reported complications out of a total of 6,927 abortions, which represents a complication rate of 0.19%. (Joint Stip. (dkt. #200) ¶ 9; Ex. 1088.) The 2013 report reveals 16 reported complications out of 6,463 abortions, resulting in a complication rate of 0.25%. Wis. Dep't of Health Services, "Reported Induced Abortions in Wisconsin, 2013" (Aug 2014), available at http://www.dhs.wisconsin.gov/ publications/P4/p45360-13.pdf/.
Perhaps in response to this court's statement in its preliminary injunction opinion that "[d]efendants' position may have some merit if they could articulate a single, actual instance where a provider's lack of admitting privileges had been a factor in an abortion patient's negative outcome," Van Hollen II, 2013 WL 3989238, at *14, defendants attempted to produce such evidence at trial. A woman who had an abortion in 1995 at Appleton's PPW clinic testified to having a high fever about one week after her abortion, eventually being hospitalized for treatment of a major infection. (5/28/14 Trial Tr. (dkt. #233) 5, 8-11 (Wood).) Even assuming this woman's infection was a complication caused by her abortion, which was reasonably questioned in light of other reasons offered in her medical record (id. at 19; Ex. 1069; 5/28/14 Trial Tr. (dkt. #233) 127 (Merrill)), the infection developed several days after her abortion and she understandably went to a hospital across the street from where she was living at that time, rather than return to a hospital near where the abortion had been performed. (5/28/14 Trial Tr. (dkt. #233) 9 (Wood).) Given these circumstances, an admitting privileges requirement would not have altered Wood's treatment, or at least defendants have failed to demonstrate as much.
One of defendants' other experts, Dr. Linn, similarly testified to a case about ten years ago where he cared for a patient who had been brought by ambulance from AMS to the emergency room. (Ex. 1072 (Linn Rept.) ¶ 6; 5/28/14 Trial Tr. (dkt. #233) 37 (Linn).) In that case, the woman required a hysterectomy. Dr. Linn did not know for certain, but believed that the doctor who provided the abortion did not call to transfer the patient; nor did he call the next day to check on her status. (Ex. 1072 (Linn Rept.) ¶ 6; 5/28/14 Trial Tr. (dkt. #233) 37-39 (Linn).) Dr. Linn opined that if the doctor "was on the medical staff of the hospital, he could have expedited her care," possibly avoiding a hysterectomy, or "[a]t the very least, if he was on staff at the hospital, there would have been some quality review process initiated to see if the complication could have been avoided and how to do `hand-off'
As described above in the court's rulings on plaintiffs' motions to supplement the record, defendant Dave Ross, Secretary of the Wisconsin Department of Safety & Professional Services, and defendant Kenneth B. Simons, Chairperson of the Medical Examining Board of the State of Wisconsin, stated in response to interrogatories that neither the agency nor the board has investigated, or in the case of the Medical Examining Board, taken disciplinary action against, a physician performing abortion services in the last five years. (Exs. 21, 22.)
While the lack of any evidence demonstrating that Act 37 addresses a known problem is telling, defendants correctly point out that there need not be a lengthy record of incidents to warrant legislation. See Greenville Women's Clinic v. Bryant, 222 F.3d 157, 169 (4th Cir.2000) ("[T]here is no requirement that a state refrain from regulating abortion facilities until a public-health problem manifests itself."). Defendants posit three core reasons for requiring admitting privileges: (a) continuity of care/communication; (b) ensuring quality of physicians providing such care; and (c) peer review/accountability. (Ex. 1058 (Thorp Rept.) ¶ 22; Ex. 1087 (Expert Report of David C. Merrill, M.D., Ph.D. ("Merrill Rept.")) ¶¶ 2, 3, 21; 5/28/14 Trial Tr. (dkt. #233) 109, 114 (Merrill); Ex. 1082 (Expert Report of James C. Anderson, M.D. ("Anderson Rept.")); 5/29/14 (dkt. #244) 233 (Anderson).) This opinion will now turn to the court's findings of fact as to each.
The parties and their experts agree that continuity of care is paramount in managing complications. While there is agreement on this general proposition, at trial the evidence demonstrated that the admitting privileges requirement is unlikely to further continuity of care for several reasons. First, for those complications occurring at the clinic, there was a consensus among the parties and their experts that advance transfer agreements and a call to the receiving hospital's emergency department from the physician who performed the abortion are the most important factors in ensuring continuity of care.
In fact, all of the plaintiffs' clinics comply with Wis. Admin. Code MED § 11.04(1)(g), which requires physicians performing abortions to have made arrangements with a local hospital for admission of patients requiring emergency care. (Notably, no other provider of outpatient procedures in Wisconsin is required to have such arrangements.) AMS's arrangement is with Aurora-Sinai Hospital. (5/27/14 Trial Tr. (dkt. #243) 41 (Ashlock); Smith Depo. (dkt. #211) 69.) AMS's director testified to the protocol AMS follows in managing complications, including having the doctor contact the emergency room and copying the patient's records for the emergency room staff. (5/27/14 Trial Tr. (dkt. #243) 36 (Ashlock); Smith Depo. (dkt. #211) 69-70, 80-81.) PPW similarly has agreements with hospitals in Madison, Milwaukee and Appleton. (5/27/14 Trial Tr. (dkt. #243) 111, 121 (King); Ex. 37.) According to PPW's policies, if a patient needs hospital care, the staff will arrange for emergency transport, including completing an emergency transport form and copying her medical chart. (5/27/14 Trial Tr. (dkt. #243) 113 (King); Exs. 34, 38.) The physician is also required to contact the receiving hospital and describe the situation in particular, what led up to the emergency, and what interventions were performed. (Id.)
Even one of defendants' own experts, Dr. Anderson, agreed that admitting privileges are not required for a treating physician to call the ER in ensuring continuity of care. (See 5/29/14 Trial Tr. (dkt. #244) 236).) Moreover, the Act does not require the physician who performs the abortion accompany his or her patient to the hospital, treat the patient at the hospital, communicate with the hospital, or facilitate the hand-off of the patient to hospital physicians. The Act also does not require the physician to admit or attempt to admit patients who need hospitalization at a hospital where the physician has admitting privileges.
Second, the weight of the evidence demonstrates that the image of a treating physician in an outpatient setting accompanying her patient to the hospital, much less continuing treatment in the inpatient setting is increasingly outdated and contrary to modern hospital care. See Van Hollen III, 738 F.3d at 793 ("The trend in the hospital industry is for the hospital to require the treating physician to hand over his patent who requires hospitalization to physicians employed by the hospital, rather than allowing the treating physician to continue participating in the patient's treatment in the hospital."). As explained by the Chief Medical Officer for Wheaton Franciscan Healthcare—the healthcare system of which six of the 17 hospitals within a 30 mile radius of AMS are affiliated—"the healthcare landscape has evolved." (Hanson Depo. (dkt. #210) 18.) For doctors who provide services on an outpatient basis, "[if] their patients need to be admitted, they are admitted [to] a hospital with someone who has chosen to spend their entire day in the hospital taking care of those patients." (Id. at 19.) Even in the expert colloquy, all experts presumed that the outpatient physician would not continue to treat a complication requiring hospitalization, rather this would be for a surgeon at the hospital or the ER doctor to manage. (5/29/14 Trial Tr. (dkt. #244)
In particular, Dr. King testified that if a complication requiring hospitalization occurred under her care, she would not accompany the patient to the hospital: "My presence would not improve her ability to be transferred nor would it improve or hasten her care once she arrived at the hospital and the emergency department." (5/27/14 Trial Tr. (dkt. #243) 118 (King).) Dr. King's impression is consistent with Dr. Pfleger's experience transferring three patients to the hospital over the course of her career (in which she has performed 15,000 abortions). (5/27/14 Trial Tr. (dkt. #243) 187 (Pfleger).) In each case, she spoke with the emergency room doctor, ob-gyn on call, or both, and provided documentation to go with the patient to the hospital, including a written summary of what she had done and what she presumed the complication to be. (Id. at 188.)
Third, emergency rooms treat patients without regard to whether the treating physician has admitting privileges.
Dr. Stephen Hargarten, Professor and Chairman of Emergency Medicine at the Medical College of Wisconsin and Chief of Emergency Medicine at Froedtert Hospital, has been practicing emergency medicine since 1976 and is board-certified in that field. (5/29/14 Trial Tr. (dkt. #244) 154 (Hargarten); Ex. 53 (Expert Report of Stephen Hargarten, M.D., MPH ("Hargarten Rept.")) ¶ 2.) Dr. Hargarten testified that admitting privileges are not necessary when a patient arrives at the emergency department, because she is generally treated without knowing whether an admitting physician is "linked" with that patient. (5/29/14 Trial Tr. (dkt. #244) 155 (Hargarten).) "Our goal is the patient's safety. Our goal is to initiate resuscitation and beginning to find out what's wrong and begin the initial raw treatment plan." (Id.) While Dr. Hargarten acknowledges that a call from a treating physician would certainly be helpful, he also testified that it makes no difference whether the physician referring a patient to the emergency room has admitting privileges or not. (Id. at 160-61, 165-66.)
To counter Dr. Hargarten's testimony, defendants called Dr. James C. Anderson, who practices in the area of primary care and is board-certified in both emergency medicine and in family medicine. (5/29/14 Trial Tr. (dkt. #244) 231-32 (Anderson).) While Dr. Anderson testified to the importance of admitting privileges in the emergency medicine setting, he had not practiced emergency medicine since 2005, and
Fourth, for complications arising at the clinic that are so severe as to require transportation to a hospital by ambulance, there is no assurance that a patient would be transferred to the hospital for which the treating physician has admitting privileges. (5/27/14 Trial Tr. (dkt. #243) 118 (King).) Certainly a patient's or her physician's preference may be a consideration (Joint Stip. (dkt. #200) ¶ 17; Ex. 1092), but the EMS service is most likely to transport the patient to the closest hospital, which in many cases may not be—or at least the Act does not require that it be—the one where the treating physician has admitting privileges. Indeed, this discrepancy is reflected in AMS's recent experience dealing with complications. Despite AMS's transfer arrangement with Aurora-Sinai, approximately half of the time a complication requiring hospital care arises at AMS's clinic, the EMTs opt to take AMS's patients to Columbia-St. Mary's. (5/27/14 Trial Tr. (dkt. #243) 41-42 (Ashlock); 5/29/14 Trial Tr. (dkt. #244) 188 (Christiansen).) Similarly, Dr. King has admitting privileges at Froedtert Hospital, which is within 30 miles of PPW's Milwaukee-Jackson clinic, but is not the nearest hospital. (5/27/14 Trial Tr. (dkt. #243) 118 (King).) Indeed, this is the very situation that Dr. Linn encountered in a case eventually requiring a hysterectomy: an AMS patient experiencing complications was transferred to one hospital despite the treating physician having admitting privileges at another hospital. (Ex. 1072 (Linn Rept.) ¶ 6; 5/28/14 Trial Tr. (dkt. #233) 37 (Linn).)
Fifth, for complications that occur after the procedure at home, there are additional challenges with defendants' assertion that admitting privileges will further the continuity of care. Generally, complications from medical abortions will occur outside of the clinic since that is where women are self-administering the second medication. (5/27/14 Trial Tr. (dkt. #243) 109 (King); 5/29/14 Trial Tr. (dkt. #244) 38-39 (colloquy).) Plaintiffs provide information to patients, instructing them, in the case of an emergency, to go to the closest emergency room, which often will not be close to the clinic where the original procedure was performed. (5/27/14 Trial Tr. (dkt. #243) 48-49 (Ashlock describing AMS's protocol); id. at 130 (King describing PPW's protocol).)
For example, approximately one-third of AMS's patients and 40% of PPW's Milwaukee-Jackson patients come from outside of Milwaukee County. (5/27/14 Trial Tr. (dkt. #243) 51 (Ashlock), 131 (King).) Eighty-nine percent of PPW's Appleton North abortion patients come from outside of the Appleton area. (5/27/14 Trial Tr. (dkt. #243) 131 (King).) Despite Dr. Thorp's testimony to the contrary (5/29/14 Trial Tr. (dkt. #244) 67 (Thorp)), it is simply not credible that plaintiffs' patients would nevertheless insist on transport to a hospital nearer where the physician who performed the original abortion has admitting privileges, especially in light of the likely distance from the patient's home, limitations on travel, and challenges to access to healthcare confronted by women living in poverty as discussed more below.
In summary, defendants have failed to offer credible evidence that the admitting
Defendants also maintain that the requirement for hospital admitting privileges will help insure the quality of physicians providing abortions. At first glance, this is likely defendants' strongest argument. Indeed, there was a consensus among the experts during the colloquy that admitting privileges is an indication of quality of the physician, although unnecessary for physicians engaged in a strictly outpatient practice. (5/29/14 Trial Tr. (dkt. #244) 59 (colloquy).) Still, the specific requirement at issue here—admitting privileges within 30 miles of abortion practice—is a poor substitute for better measures of quality for several reasons.
First, defendants have advanced no reason why the requirement should be limited to hospitals within a thirty-mile radius if the reason for this requirement is simply a "stamp of approval."
Second, justifying the admitting privileges requirement as a quality metric is undermined by the Act's failure to provide a grace period post-enactment, as well as by the lack of a rolling basis for new providers or renewals. As indicated in the cases cited above, a number of states that have adopted a similar admitting privileges requirement of late at least include some flexibility as to compliance. Even the challenged Texas statute provided a 100-day grace period within which to comply with the admitting privileges requirement. Abbott II, 748 F.3d at 604; see also Van Hollen III, 738 F.3d at 797 (describing grace periods in other states passing similar admitting privileges requirement ranging from 76 to 128 days in Mississippi, Alabama, Texas and North Dakota). While the Fifth Circuit upheld the constitutionality of the Texas law, the court order extended the 100-day grace period to bar enforcement against "abortion providers who timely applied for admitting privileges under the statute but are awaiting a response." Abbott II, 748 F.3d at 604; Van Hollen III, 738 F.3d at 807 (Manion, J., concurring in entry of a preliminary
Third, the admitting privileges requirement does not measure the quality of care for those providers who exclusively practice in the outpatient setting. (5/29/14 Trial Tr. (dkt. #244) 60-61 (Dr. Bulun acknowledging that for uncommon procedures like abortion, a physician with admitting privileges may not be the most qualified).) In granting admitting privileges, hospitals are understandably concerned with an applicant's inpatient record of care. Ironically, Drs. Christiansen and Smith are the most experienced providers of abortions in Wisconsin, and yet have no admitting privileges in the Milwaukee area.
Fourth, defendants have also failed to put forth any evidence why admitting privileges, as compared to "refer and follow" or other types of less stringent privileges, are necessary to ensure the quality of physicians providing abortion services. The deposition testimony of Dr. Hanson once again proves insightful. Hanson explains that her refer-and-follow privileges best fit her needs as a primary care physician, relying on hospitalists to treat her patients when they are in need of hospital care.
(Hanson Depo. (dkt. #210) 19.)
To obtain refer-and-follow privileges, an applicant still must be screened for verification of references and other credentials, but those privileges do not require demonstration of an in patient record of care. Dr. Smith holds this type of privileges at a hospital in the Milwaukee area (Smith Depo. (dkt. #211) 44), and in rejecting Dr. Christiansen's request for an application, Froedtert's credentials committee suggested that he may "choose to request membership in the Refer and Follow Staff category, which is specifically for the physician with an ambulatory-based practice" (Ex. 6).
In the abstract, the admitting privileges requirement may serve as a quality metric, but the State has failed to put forth any evidence justifying the more stringent aspects of the requirement—the 30-mile geographical limitation, the lack of any grace-period, and the requirement for admitting as opposed to refer-and-follow or "affiliate" privileges. As the Supreme Court explained in striking down a similar purported health regulation in Akron, "the
Fifth, the State's purported reliance on admitting privileges as a credentialing check also implicates plaintiffs' claim that the Act violates the non-delegation doctrine. Not only is the State delegating quality monitoring in the hands of private entities with non-uniform criteria and with admitted interests having nothing to do with an individual doctor's quality of care, those interests run counter to granting privileges to abortion providers, who unquestionably offer little chance of hospital referrals and a real risk of controversy if formally associated with the hospital. Without any procedure for physicians to appeal or for the State to check those decisions, the State is at risk of violating the non-delegation doctrine. See discussion infra Opinion IV.
Finally, the State contends that hospital membership provides a conduit for holding physicians who mismanage complications accountable through peer review. Dr. Laube conceded that peer review is a benefit that one would have through admitting privileges, but contends that there are other ways to discipline providers (e.g., through medical boards). (5/29/14 Trial Tr. (dkt. #244) 65-66 (colloquy).) Consistent with that view, the parties and their experts agree that a failure to communicate with the receiving hospital would constitute patient abandonment or substandard medical care, and would subject the provider to disciplinary actions by the Medical Examining Board. (Ex. 1087 (Merrill Rept.) ¶ 3; 5/29 Trial Tr. (dkt. #244) 185 (Christiansen); 5/29/14 Trial Tr. (dkt. #244) 138 (Laube).) As a result, any peer review or accountability benefit to admitting privileges would be incremental at best to steps the Medical Examining Board would take in the face of patient abandonment or substandard care.
This purported justification suffers from the same weaknesses as the other two proffered by the State here. For example, the Act does not require that the patient is treated at the hospital for which the treating physician has admitting privileges; nor does the Act require the treating provider to call the hospital to ensure continuity of care or otherwise manage the patient through her complication. Similarly, the
In addition to the tenuous link, if any, between the proffered justifications and the State's evidence, the State adopted this requirement in the face of opposition by all of Wisconsin's leading medical and public health associations, including the Wisconsin Medical Society, the Wisconsin Section of the American Congress of Obstetricians and Gynecologists, the Wisconsin Association of Local Health Departments and Boards, the Wisconsin Academy of Family Physicians, the Wisconsin Hospital Association, and the Wisconsin Public Health Association. (5/29/14 Trial Tr. (dkt. #244) 139 (Laube); Joint Stip. (dkt. #200); Rose Aff., Ex. A (dkt. #49-1) 11.) In Akron, the Court struck down the hospitalization requirement in part because of the regulation's departure from accepted medical practice. See Akron, 462 U.S. at 431, 103 S.Ct. 2481 ("The State's discretion. . . does not, however, permit it to adopt abortion regulations that depart from accepted medical practice.").
In determining whether the Act violates patients' Fourteenth Amendment liberty rights, the court must consider whether the Act poses an undue burden on women seeking abortions in Wisconsin. See Karlin, 188 F.3d at 481 (instructing courts to consider "(1) whether the . . . requirement was reasonably related to a legitimate state interest and (2) whether the [requirement] had the practical effect of imposing an undue burden"). On appeal, the Seventh Circuit instructed that the undue burden test "is not a matter of the number of women likely to be affected. `[A]n undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.'" Van Hollen III, 738 F.3d at 798 (quoting Casey, 505 U.S. at 877, 112 S.Ct. 2791).
"Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure." Casey, 505 U.S. at 846, 112 S.Ct. 2791 (emphasis added). The Seventh Circuit in Karlin described this test as whether the regulation "prevents" women from seeking abortion. See also Karlin, 188 F.3d at 482 ("[T]o constitute an undue burden, a challenged state regulation must have a strong likelihood of preventing women from obtaining abortions rather than merely making abortions more difficult to obtain.").
The word "prevent" has many meanings; it can mean that one was prohibited or barred, or it can mean that a person lacked any meaningful opportunity.
Drs. Bulun, Laube and Thorp all agree that the number of abortion providers has declined in recent decades. (5/29/14 Trial Tr. (dkt. #244) 72-73 (colloquy).)
Part of this decline may be because of the retirement of physicians who started providing abortions on the heels of Roe v. Wade in 1973. As Dr. Christiansen described:
(5/29/14 Trial Tr. (dkt. #244) 227.) While this dynamic may not be problematic in and of itself, full-time, dedicated physicians are being replaced by PPW physicians, who are balancing their own, separate obgyn practices and academic commitments with providing abortions on a very occasional basis. (5/27/14 Trial Tr. (dkt. #243) 303 (Huyck explaining that two new physicians who provide abortions on a limited basis for PPW "have very full practices. . . [a]nd that's one of the reasons that they have admitting privileges, but that limits the amount of time that they can provide for us").) At minimum, this would require an increase in the total number of physicians providing abortions in the face of pressures against their doing so.
Over this same period of time, abortions have also declined. See Guttmacher Institute, State-by-State Trends in Abortion in the United States, 1973-2011, available at http://www.guttmacher.org/presentations/
Dr. Deborah Stulberg, an assistant professor in the Department of Family Medicine at the University of Chicago Pritzker School of Medicine with secondary appointments in the Department of Obstetrics and Gynecology and the Maclean Center for Clinical Medical Ethics, conducts research generally concerning reproductive health, and is a founding board member and president of the Midwest Access Project, a nonprofit which aims to increase reproductive health access by providing comprehensive training in reproductive health for family practitioners. (Ex. 27 (Stulberg Rept.)) ¶¶ 1, 4.) Based on her research and experience with MAP, Dr. Stulberg testified that it is very difficult for abortion clinics to find and retain providers because of a combination of factors, including: (1) the history of harassment and violence toward clinics and providers; (2) difficulty in accessing training in procedures; (3) personal and professional stigmatization; and (4) contractual limitations instituted by hospitals or practice groups. (Id. at ¶ 6; 5/28/14 Trial Tr. (dkt. #233) 70-71 (Stulberg).)
Dr. Stulberg's research is consistent with plaintiffs' own experience. For PPW, recruiting physicians to provide abortion services is difficult for several reasons, and would be made more taxing if physicians are required to obtain admitting privileges under Act 37 before beginning to provide services. (5/27/14 Trial Tr. (dkt. #243) 15051 (King).) Dr. King also mentioned several barriers, including hospitals and physician groups that prohibit physicians from performing abortions. (Id. at 153.) For AMS, Dr. Christiansen recounted several attempts to recruit doctors that failed, in part, because of physician groups or hospital systems stating that a physician could not remain employed if she provided abortion services. (5/29/14 Trial Tr. (dkt. #244) 226 (Christiansen).) Generally, the "residual stigma" surrounding abortion providers also proves to be a barrier to recruiting physicians. (Id. at 226-27.) Testifying based on his thirty years of counseling residents, Dr. Laube confirmed that physicians are denied the ability to provide abortions because of "physician pressures, hospital system pressures, social pressures, etc." (5/29/14 Trial Tr. (dkt. #244) 75-76 (colloquy).)
Obviously the risk of becoming a target of harassment and protest presents an additional barrier for recruiting physicians. (5/27/14 Trial Tr. (dkt. #243) 153 (King).) Teri Huyck, PPW's CEO, described the difficulties in recruiting and retaining physicians to provide abortion services: "It's not an attractive place to provide abortions because of the hostile environment." (5/27/14 Trial Tr. (dkt. #243) 305 (Huyck).) As an example, when the Madison Surgery Center considered providing late second-trimester abortions a few years ago, abortion opponents took out ads naming the physician who planned to provide these services, picketed her home, and harassed her at the grocery store, eventually resulting in her leaving the state. (Id. at 306.) In recent years, PPW's clinics have also been the target of violence. In 2011, a man from Marshfield
One of the most striking aspects of the trial was plaintiffs' testimony about their personal experiences with harassment and threats. Dr. King testified to being the target of protestors:
(5/27/14 Trial Tr. (dkt. #243) 153 (King).) Similarly, Dr. Pfleger testified that
(5/27/14 Trial Tr. (dkt. #243) 206 (Pfleger).) Dr. Christiansen also testified to being the subject of harassment and threats of violence over the course of his career, including hate mail, protests at his house, spray paint on his office door, locks glued shut in his car, and nails placed on his driveway. (5/29/14 Trial Tr. (dkt. #244) 253 (Christiansen).)
Based on this evidence, the court finds that significant barriers to recruiting and retaining practitioners present a real and growing threat to the availability of abortion services in Wisconsin. This is not to say that the State of Wisconsin has an affirmative duty to provide abortion services, but that the precarious availability of these services in the State is a relevant consideration in determining whether an additional, incremental regulation of private abortion providers further threatens access, constituting an undue burden on women seeking abortion services.
Plaintiffs also provided evidence demonstrating significant barriers to (1) obtaining admitting privileges, most notably the need to show a record of inpatient treatment of patients, and (2) maintaining benefits, if and when granted, because of requirements that physicians actually admit a certain number of patients for inpatient care. Given that admission is rare, if not non-existent, for some of the remaining, leading providers of full-time abortion services, and even less for part-time practitioners now replacing them, these barriers threaten the ability of AMS (immediately)
First, as for obtaining privileges, there are 17 hospitals within 30 miles of AMS. (Ex. 5 (consist of six Wheaton-Franciscan facilities, four Aurora facilities, three Froedtert facilities, three Columbia facilities, and Waukesha Memorial Hospital).) For each of these hospitals, the medical staff bylaws require applicants to demonstrate "competence," which means current competence in the inpatient (or peer-reviewed outpatient setting)
Second, as for maintaining those privileges, plaintiffs have demonstrated that a lack of inpatient admissions could threaten PPW physician's recently-gained privileges in Appleton, as well as Dr. Pfleger's privileges at Milwaukee hospitals (assuming she continues to devote the bulk of her time to providing abortions through PPW, rather than resume some sort of hospital practice). All hospitals within 30 miles of AMS require doctors to treat a certain number of patients in the hospital per year, typically around 20 patients, to retain "active" staff privileges. (Exs. 66 (FRE 1006 summary of Milwaukee hospitals' bylaws), 71, 72, 78, 97, 1040; Joint Stip. (dkt. #200) ¶ 33; Pls.' Post-Trial Br. (dkt. #248) 39 n. 24.) For "courtesy" privileges, all but one hospital requires that the physician have "active" privileges at some other hospital—requiring a physician to admit a minimum number of patients per year at some hospital. (Id.)
In granting Drs. King, Pfleger and P2 admitting privileges, Appleton informed each that it would be reviewing five cases of the care they provide at the hospital within the next six months. (Ex. 48, 68, 98; see also Ex. 65 (FRE 1006 summary of Appleton hospitals' bylaws).) Because Dr. King does not expect to admit a patient at the Appleton hospital, she is concerned her admitting privileges will be lost. (5/27/14 Trial Tr. (dkt. #243) 143 (King).) Similarly, Dr. Pfleger is concerned about her ability to maintain her privileges at Aurora Sinai after they expire in May 2015 based on her lack of inpatient care. (5/27/14 Trial Tr. (dkt. #243) 197 (Pfleger); Ex. 98 (email informing her that she will be reviewed in November 2014).) The PPW physicians' concerns appear well-founded in light of Dr. Christiansen's experience with SwedishAmerican Hospital in Rockford,
Notwithstanding current law to the contrary, plaintiffs also credibly argue that the religious affiliation of hospitals, and in particular Catholic hospitals, may pose a continuing barrier to securing admitting privileges. The record on whether religious-affiliated hospitals (amorphously grouped to include Catholic, Lutheran and Jewish hospitals, and perhaps others) would expressly decline to provide admitting privileges to a doctor performing abortions on that basis is less clear. Dr. Hanson, the Chief Medical Officer for Wheaton Franciscan Healthcare, a Catholic institution, is quoted as stating in response to a journalist's inquiry that "Wheaton Franciscan Healthcare is a ministry of the Catholic church[.] For that reason, if it's known to us that a doctor performs abortions and that doctor applies for privileges at one of our hospitals, our hospital board would not grant privileges." (Hanson Depo. (dkt. #210) 29.) Since then—perhaps after having been apprised of the "Church Amendments," 42 U.S.C. § 300a-7-Dr. Hanson walked back the statement attributed to her, testifying that Wheaton Franciscan does not "categorically deny admitting privileges to any doctor who provides abortions. . . . We understand the law. We abide by the law, and we consider each case individually, every application." (Id. at 51-52.)
Regardless, hospital bylaws suggest that religious objection to abortion will be a high hurdle for any physician who performs abortions when applying for staff privileges at a Catholic institution. For example, Wheaton Franciscan's and Columbia-St. Mary's hospital systems (collectively comprising a little over half of the 17 hospitals in the Milwaukee area) require physicians to abide by the Ethical and Religious Directives, which warn that "Catholic health care institutions need to be concerned about the danger of scandal in any association with abortions providers." (Ex. 72, 78.) See United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services 26 (5th ed.2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-CareServices-fifth-edition-2009.pdf (last visited Mar. 16, 2015). Wheaton requires a physician to sign a statement, as part of his or her application for medical staff membership, which states in pertinent part: "I declare that I presently do not advertise or solicit the performance of voluntary, elective abortions and that in the future such advertising or soliciting by, or on behalf of me, shall subject me to automatic dismissal from the Medical Staff(s) of such Hospital(s)." (Hanson Depo. (dkt. #210) 40; Ex. 72.)
Still, religious hospitals, including a Catholic hospital in the Milwaukee area, have had physicians who perform abortions on staff. (5/28/14 Trial Tr. (dkt. #233) 43-44 (Linn testifying that Dr. Broekhuizen, former Medical Director for PPW, had admitting privileges until recently at Columbia-St. Mary's).) Even in the context of Catholic institutions, therefore, there appears some possibility of obtaining
In moving for summary judgment on their nondelegation doctrine claim, plaintiffs also focused on certain language in many hospitals bylaws that allow for the grant or denial of admitting privileges based on economic factors, but the evidence presented at trial did not support this theory. Indeed, there was a consensus among the experts that economic factors, such as a cap on the number of physicians a hospital would allow to have admitting privileges, do not weigh in the decisionmaking process. (5/29/14 Trial Tr. (dkt. #244) 56-57.)
At the time of the Act's passage, Drs. Christiansen and Smith—the only physicians providing abortion services at AMS—did not have admitting privileges at a hospital within 30 miles of their clinic in Milwaukee, and they have been unsuccessful in securing those privileges to date.
Dr. Christiansen holds admitting privileges at Meriter Hospital in Madison, which he has held continuously since 1977, except for a recent two-month period when he had planned to retire. (5/29/14 Trial Tr. (dkt. #244) 191-92 (Christiansen).) In the past, Dr. Christiansen has been denied admitting privileges and had his privileges revoked because of either his failure to admit patients or the fact that he was out-of-state and could not identify another physician to act as his backup. (Id. at 193-94.) After the Act passed, Dr. Christiansen attempted to obtain admitting privileges at Aurora-Sinai Hospital and at Froedtert Hospital (in conjunction with the Medical College of Wisconsin), both located in Milwaukee and within 30 miles of AMS's clinic. (Id. at 195200; Exs. 7, 8.) Dr. Christiansen testified that he limited his applications to those two hospitals because they "seemed like the most likely candidate to grant me privileges and they were the ones that were most appropriate." (5/29/14 Trial Tr. (dkt. #244) 213 (Christiansen).)
Aurora refused to send him an application because Dr. Christiansen could not document that he had "provided patient care in the hospital environment over the last twelve months." (Ex. 7 at AMS 00186.) Dr. Christiansen further testified that he tried to get in front of the Credentialing Committee, but his efforts fell short, and eventually, he "didn't think there was anything else [he] could do." (5/29/14 Trial Tr. (dkt. #244) 203-214 (Christiansen).) As for Froedtert, the Credentials Committee was "unable to act on [his] application as it did not have sufficient evidence of [his] current experience and competence for provision of care in the inpatient environment to allow it to assess [his] competence for the privileges requirement." (Ex. 6 at AMS00177; see also 5/29/14 Trial Tr. (dkt. #244) 209.) In response to this letter, Dr. Christiansen explained that he has not attended to any patients in a hospital for the last two years and asked if there was any way for the hospital to accommodate his request for admitting privileges (rather than refer-and-follow privileges) in light of the demands of Act 37. (Ex. 6 at AMS00179.)
While the court expressed frustration at Drs. Christiansen and Smith's failure to exhaust all opportunities, and to push for final decisions on outstanding applications before trial, their assessment that the chances of securing admitting privileges at a Milwaukee hospital are "slim to none" is credible, even more so as a descriptor of the chances of retaining these privileges for any length of time. Both doctors attempted to secure privileges from hospitals with which they had the best connections, hoping that in light of the oddity of Act 37, those hospitals would ignore fairly standard threshold requirements for a record of inpatient care or active privileges at another hospital (which, in turn, would typically require a record of inpatient care at that hospital). While perhaps an individual physician might pull strings or persuade a hospital to ignore standard credentialing requirements, the process involves a series of steps and a number of decisionmakers. Understandably from purely a business model, the preponderance of the evidence is that hospitals are generally unwilling to bend their rules, even for physicians that they know and in the face of a regulation which they may find unnecessary.
As for PPW, at the time that Act 37 was passed, several of PPW's physicians did not have admitting privileges within 30 miles of the Appleton and Milwaukee clinics. (5/27/14 Trial Tr. (dkt. #243) 298 (Huyck).)
PPW physicians, Drs. P2 and P5, currently provide abortion services at the Appleton North health center. (Joint Stip. (dkt. #200) 1f 5.) By the time of trial, Drs. King, P1 and P2 have admitting privileges at a hospital within 30 miles of the Appleton clinic as well. (Joint Stip. (dkt. #200) 1f 6.)
While PPW doctors were able to secure admitting privileges, the process for doing so was both lengthy and tedious. Dr. King described in detail her efforts to obtain admitting privileges at Appleton Medical Center: a time-intensive, multi-step process which took approximately ten months from June 2013 to April 28, 2014. (5/27/14 Trial Tr. (dkt. #243) 125-143 (King).) Dr. Pfleger began the process of securing admitting privileges in Milwaukee in May 2013, but did not receive privileges at Froedtert Hospital until January 2014 and Aurora-Sinai until February 2014 (despite previously having admitting privileges at Aurora-Sinai for 20 years). (5/27/14 Trial Tr. (dkt. #243) 19193, 203-04 (Pfleger); Exs. 57A-57H, 58A-58D.)
The process of submitting both applications—including requesting an application and preparing it—obviously required time, as did engaging in regular communications with the medical staff office, creating a list of all inpatient procedures, and participating in 20 to 30 hours of training on electronic medical record systems that they are unlikely to use. (5/27/14 Trial Tr. (dkt. #243) 197-98 (Pfleger).) Certainly, both doctors could have acted more diligently in responding to follow up requests from hospitals, but even these actions would have shaved off days or weeks, rather than months, from the process. In hospitals tied to academic institutions where credentialing is conditioned on receipt of an academic appointment, the process for receiving privileges may take between one to three months, as was Dr. Bulun's experience (5/29/14 Trial Tr. (dkt. #244) 50-51 (colloquy)), but the evidence suggest that for other physicians seeking admitting privileges, the process takes six to nine months. This length of time will prove difficult for PPW if the Act goes into effect, because as explained by its CEO Huyck, "it's not viable to open and close and open and close a health center when it takes ten months to get admitting privileges if you have a new physician." (5/27/14 Trial Tr. (dkt. #243) 299 (Huyck).)
Finally, PPW doctors were able to secure privileges by relying on their record of inpatient care based on their non-PPW practices, but those privileges were granted conditioned on future admission of a certain number of patients. For example, Dr. King faces the loss of her admitting privileges under Appleton Medical Center's by-laws, which provide that "[i]n the case where a practitioner has little or no clinical activity at Appleton Medical Center-Theda Clark," the physician "may be evaluated as to the possible reason for no activity" and describes voluntary withdrawal of privileges or deferment pending data collection as possible consequences. (5/27/14 Trial Tr. (dkt. #243) 145, 171-72 (King); Ex. 68.) Dr. Pfleger's admitting privileges at Aurora-Sinai expire in May 2015. (5/27/14 Trial Tr. (dkt. #243) 197 (Pfleger); Ex. 98.) Dr. Pfleger is similarly
Plaintiffs have demonstrated that if Act 37 takes effect, AMS will likely close. Drs. Smith and Christiansen have not been able to obtain admitting privileges and are unlikely to be able to obtain those privileges because of the uniform, threshold requirement that applicants seeking admitting privileges demonstrate competence in inpatient care or peer-reviewed outpatient care. Since there is currently no method provided to challenge whether the underlying reasons for a denial of privileges by these private decisionmakers has something to do with considerations of their medical competence (which is more likely than not with respect to both doctors), AMS is without a remedy.
Moreover, AMS has been unsuccessful to date in attempting to recruit a physician or physicians to take over Dr. Smith's and to a lesser-extent Dr. Christiansen's services. (5/29/14 Trial Tr. (dkt. #244) 226, 250 (Christiansen) (describing recruiting efforts); Smith Depo. (dkt. #211) 37, 41-43 (efforts to recruit a physician after a doctor stopped working in January 2014 proved unsuccessful).) Even if AMS were successful at recruiting, it is at best questionable whether a physician would have or be able to obtain the required admitting privileges, especially in light of the barriers to obtaining privileges described above and as faced by both Drs. Smith and Christiansen. In light of all of this, the court credits Dr. Christiansen's opinion that AMS will have to close if the Act goes into effect.
Plaintiffs have also demonstrated that PPW will not be able to absorb the demand for abortions should AMS close. Dr. King testified that the current wait time for PPW patients is three to four weeks. (5/27/14 Trial Tr. (dkt. #243) 149 (King); 5/27/14 Trial Tr. (dkt. #243) 302 (Huyck describing 3-4 week wait time).) Dr. Henshaw, a former senior fellow with the Guttmacher Institute, testified that a three week waiting list is "very unusual." (5/30/14 Trial Tr. (dkt. #234) 9 (Henshaw).) If AMS were to close, it would "overwhelm the capacity of the Planned Parenthood of Wisconsin clinics to accommodate" the 2,500 women who receive abortions at AMS in 2013. (5/27/14 Trial Tr. (dkt. #243) 147-48 (King).) Specifically, Dr. King noted the current shortage of physicians providing abortion services, which would be amplified by the closure of AMS. (Id. at 149.) In 2013, PPW's Milwaukee-Jackson clinic provided approximately 1,500 abortions. (Id.) If AMS were to close and PPW attempted to absorb those patients, the annual number of abortions at that clinic would have to increase 160% from 1,500 to 4,000. (Id. at 150.) If AMS were to close, Dr. King acknowledged that PPW would consider taking over its space, but also credibly testified that current staffing and difficulty in recruiting physicians left her uncertain about PPW's ability to do that. (Id. at 177.) Huyck similarly testified to the lack of space, support staff, equipment and infrastructure to absorb AMS's demand for abortion services. (5/27/15 Trial Tr. (dkt. #243) 307 (Huyck).)
Defendants point out that PPW is attempting to recruit additional physicians at
Even if the court did not accept strong evidence of the short and long term structural barriers to PPW (or even more unlikely, a new entrant into a literally and figuratively inhospitable market place),
The likely closure of AMS would result in at least three immediate, identifiable burdens on women seeking abortions in Wisconsin: (1) significantly increased wait times; (2) required travel to Chicago or other locations; and (3) no inpatient option for women seeking abortions post 18.6 weeks LMP in Wisconsin. First, as described above PPW's patients already experience a three to four week wait for treatment. If the Act were to go into effect and AMS were to close, the court credits Dr. King's best estimate that women seeking abortions at the Milwaukee clinic would likely experience an eight to ten week wait time as PPW attempts to meet the demand in Milwaukee and the surrounding area. (5/27/14 Trial Tr. (dkt. #243) 150 (King).) These wait times have obvious ripple effects on the availability for all abortions, including those offering the safest, early-term procedures. Necessarily, women will likely be pushed out of the window for receiving medication abortions (for PPW, up to nine weeks gestation), and could be pushed entirely out of the pre-viability zone, preventing some women from having an abortion at all. Even if not out of the zone of pre-viability, the delay may result in some women not being able to have an abortion until the second trimester, when abortions are not only more expensive, but past the point where some women are comfortable having an abortion. (5/30/14 Trial Tr. (dkt. #234) 8 (Henshaw).) Increased wait times will obviously also mean that women are receiving abortions later in gestation, which in turn increases health risk. (5/27/14 Trial Tr. (dkt. #243) 149 (King).)
Second, faced with a lack of options in Wisconsin, women will be required to travel
Jane Collins, a Professor of Community & Environmental Sociology and Gender & Women's Studies at the University of Wisconsin, Madison, who studies low-wage labor and poverty, estimates that the additional travel costs alone would run between $30 and $160. (Ex. 16 (Collins Rept.) p. 22, ¶ 37.) Additional costs will include more time away from work and childcare. (Id. at ¶¶ 27, 35.) In addition to these out-of-pocket costs, there are other less quantifiable, albeit real costs that would be amplified if women were to travel to Chicago or other areas to seek abortions, like stress of travel to an unfamiliar area, and difficulties encountered in trying to keep the reason for the travel confidential from a boss, co-workers or an abusive partner. (Id. at ¶ 44.) According to one study, "[f]or women pulling together money to pay for the procedure as well as transportation and missed work, these relatively small amounts can prove impossible to procure and could prevent women from obtaining a wanted abortion." (Id. at ¶ 47 (citing Jones, R. K., Upadhyay, U. D., and Weitz, T., "At What Cost? Payment for Abortion Care by U.S. Women," Women's Health Issues 23(3): e173-e178, May 2013 p. 12-13, available at http://www. guttmacher.org/pubs/journals/j.whi.2013. 03.001.pdf (last visited Mar. 16, 2015)).) At some point, the additional costs associated with travel—including gas, tolls, hotel room stays, bus tickets, lost wages and childcare—may reach a "tipping point where [they] become too great for a household to bear and the woman would not be able to get the abortion that she desired." (5/27/14 Trial Tr. (dkt. #243) 264, 270 (Collins).)
Dr. Collins' conclusions are consistent with those of Dr. Henshaw. As he testified,
Third, perhaps the most obvious ramification of AMS closing is that there will be no outpatient option (and very limited inpatient options) for women seeking abortions post 18.6-weeks LMP, since AMS is currently the only clinic providing those services in Wisconsin. (5/27/14 Trial Tr. (dkt. #243) 25-26 (Ashlock), 308 (Huyck).) Women with a diagnosis of a severe, lethal fetal anomaly sometimes have an option to obtain an abortion in a hospital setting. (Stip. Facts (dkt. #200) ¶ 34.) Though, as Dr. King testified, insurance may deny coverage for those abortions, and for those women, receiving an abortion in the hospital setting, the cost may prove too exorbitant. (5/27/14 Trial Tr. (dkt. #243) 146
If AMS were to close, women past 18.6-weeks LMP would have to travel out of state, to a facility in Chicago, approximately 85 miles one way from the AMS clinic, or Minneapolis, approximately 275 miles one way from the AMS clinic. (5/30/14 Trial Tr. (dkt. #234) 7.)
In remanding this matter for further proceedings, the Seventh Circuit explained that in considering whether the regulation would impose an undue burden on women seeking abortions, "[i]t is not a matter of the number of women likely to be affected." Van Hollen III, 738 F.3d at 798. This statement is arguably at odds with the articulated standard in Karlin, in which another split panel of the Seventh Circuit explained that in determining whether a regulation constitutes an undue burden, the court should focus on "whether it will have the likely effect of preventing a significant number of women for whom the regulation is relevant from obtaining abortions." 188 F.3d at 481 (emphasis added). One explanation for this seeming disconnect is that the court in Karlin was reviewing a mandatory 24-hour waiting period regulation, a so-called "persuasion" regulation, where some decline in abortions would be consistent with the state interest at play. Here, however, the only interest at stake is the health of women seeking abortions. Therefore, there is no need to tease out the intended impact of a persuasion regulation—encouraging women to maintain their pregnancies—from the unintended (or at least improper) impact—preventing women who want an abortion from obtaining one. Regardless, the Seventh Circuit's specific instruction in this case, leaves this court the task of balancing the evidence of health benefits with harms were the requirement of admitting privileges to be enforced in Wisconsin.
Whether the Act presents an undue burden depends on the relative benefits of the Act compared to the imposed burden. Van Hollen III, 738 F.3d at 798; see also Strange, 33 F.Supp.3d at 1337 ("[T]he more severe the obstacle a regulation creates, the more robust the government's justification must be, both in terms of how much benefit the regulation provides towards achieving the State's interests and in terms of how realistic it is the regulation will actually achieve that benefit."). For the reasons described above, plaintiffs have demonstrated by the greater weight of the evidence that a substantial number of women will be prevented from obtaining abortions (at least, safe ones) if Act 37 goes into effect. For those women accessing care in Wisconsin, increased wait times will push some women, particularly poor women, out of the pre-viability zone or to a
Part of the burden of travel is the tangible cost component. In Akron, the Supreme Court struck down a regulation requiring hospitalization for second trimester abortions in part because of the fact that second trimester abortions cost "more than twice as much in a hospital as in a clinic," and given the lack of hospitals providing such services, the "requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk." 462 U.S. at 434-35, 103 S.Ct. 2481. Even in Casey, while concluding that the increased cost of abortion due to recordkeeping and reporting provisions did not constitute an undue burden, recognizing that this fixed cost spread across a number of procedures would "[a]t most . . . increase the cost of some abortions by a slight amount," the Court also acknowledged that "at some point increased cost could become a substantial obstacle." Casey, 505 U.S. at 901, 112 S.Ct. 2791. Here, the increased costs of travel and related expenses will not be incurred and spread by the health care law, but will fall entirely on the individual woman seeking an abortion. For Casey's cautionary language to have any meaning, courts must recognize that increased costs due to regulations create a tipping point where travel and the attendant costs prevent women from accessing wanted abortions. Plaintiffs demonstrated at trial that the increased costs associated with traveling out-of-state to access abortion services constitute a substantial obstacle, and in turn an undue burden on women's ability to access safe, affordable services.
In addition to preventing women from seeking abortions, the Act would also impose significant health risks on women in Wisconsin. First, women who continue unwanted pregnancies will face increased risks associated with childbirth, as well as attendant health concerns. Second, in the face of lack of access to safe, affordable and timely abortions, women may seek out unregulated options. During the colloquy, Dr. Laube cited studies demonstrating that unsafe abortions contribute approximately 1215% of worldwide maternal mortality. (5/29/14 Trial Tr. (dkt. #244) 81 (colloquy).) Even Dr. Thorp conceded that "the more restrictive you make a law, the more likely there are to be violations of the law." (Id. at 78-79.)
So far, the court has considered whether Act 37's effect poses an undue burden. In Casey, the Court also held that a regulation is unconstitutional if its
First, as described above in the facts section, the legislative record is devoid of any medical rationale for the bill. Indeed, all Wisconsin medical organizations opposed the bill, and the only doctor who presented testimony, similarly opposed it. See supra Facts II.B. Even imputing knowledge of the opinion of a few doctors in Wisconsin that there would be a benefit for this legislation, some of whom testified at trial, any assertion that the impact on health overall would be positive was dubious from the beginning.
Second, plaintiffs were given two weekend days to comply with the requirement. The lack of any grace period is strong evidence that the legislation's intent was to cripple abortion clinics, rather than protect women's health in the face of complications. Indeed, as described above, of the admitting privileges requirements currently being challenged in federal courts, Wisconsin's statute is unique in its failure to provide any grace period. See supra Opinion II.B.iii.b.
Third, the legislation inexplicably singles out abortion procedures for special treatment when the evidence demonstrates that abortion is at least as safe as, and often much safer than, other outpatient procedures regularly performed in this State. See supra Opinion II.B.ii.b. Even defendant's expert, Dr. Thorp, conceded that there was no reason to target abortion procedures:
(5/29/14 Trial Tr. (dkt. #244) 68 (colloquy).) Despite this, the Wisconsin Legislature failed to consider, and to the court's knowledge has never considered, requiring hospital admitting privileges for any other outpatient procedure. See supra Opinion II.B.i.
Fourth, and even more telling, added to Act 37 is the extraordinary provision of a civil remedy to the father or grandparent
While none of these reasons alone would necessarily suffice to meet plaintiffs' high burden, when considered together, the only reasonable conclusion is that the legislation was motivated by an improper purpose, namely to restrict the availability of abortion services in Wisconsin. In light of the lack of any grace period to achieve compliance and creation of unusual risk of civil liability, the court is also compelled to conclude that the purpose included creating a "substantial obstacle" as well. Accordingly, the court further finds a violation of plaintiffs' patients' Fourteenth Amendment rights based on an improper purpose. At the very least, the evidence of an improper purpose bolsters plaintiffs' claim premised on the effect of the Act.
The court also must revisit plaintiffs' claim that the Act impermissibly delegates discretion over whether they may practice their chosen profession to private entities without adequate oversight in violation of the Fourteenth Amendment. In its opinion on plaintiffs' motion for summary judgment, the court relied on plaintiffs' evidence that "under the bylaws, hospitals may reserve the right to assess an application for privileges based on the hospital's own needs and financial resources, and can therefore deny privileges to physicians who are otherwise qualified." Van Hollen IV, 23 F.Supp.3d at 961. The court found that a hospital's business needs did "not appear to further any legitimate state interest, at least with respect to the providing of constitutionally protected abortion services." Id. at 965. As such, the court concluded that plaintiffs' claim had merit, though declined to enter judgment in plaintiffs' favor on that claim given (1) the lack of showing "of hospitals actually exercising their discretion to deny privileges for reasons unrelated to a legitimate state interest" and (2) the "possibility that Wis. Stat. § 50.36(4) may provide an avenue for State oversight." Id. at 967.
During trial, defendants failed to develop this second basis for denying plaintiffs' motion for summary judgment, effectively conceding that the statutory provision does not provide a mechanism by which the State could intervene, for example by providing a waiver to the admission privilege because the physician's qualifications were not at issue. Still, at trial, plaintiffs' theory that hospitals deny privileges based on their own economic interests unraveled. Indeed, all experts agreed that economic factors do not implicate admitting privileges. (5/29/14 Trial Tr. (dkt. #244) 56-57 (colloquy).) In other words, there is no "cap" in terms of the number of physicians who could gain privileges, at least not in an open system.
The question remains, however, whether the hospitals' requirement that physicians have a record of in patient care—a factor plaintiffs established at trial is a basis for hospitals uniformly denying admitting privileges—is related to a legitimate state interest. For the reasons discussed next
Finally, as the Seventh Circuit acknowledged, "[a]n issue of equal protection of the laws is lurking in this case." Van Hollen III, 738 F.3d at 790. At trial, plaintiffs demonstrated that the State lacked a rational basis for singling out abortion providers. (See 5/29/14 Trial Tr. (dkt. #244) 68 (Thorp conceding that there is no reason to treat abortion providers differently).) Perhaps acknowledging as much in their post-trial briefing, the State changed arguments, now asserting that abortion is different because of the State's interest in human life. (Defs.' Post-Trial Br. (dkt. #255) 73-74.) While the State certainly has a recognized interest in human life, it has repeatedly conceded that the only interest at stake here is the health of women seeking abortions, and not any interest in persuading women to choose childbirth over abortion. (Prelim. Inj. Hearing Tr. (dkt. #73) 45, 52, 54, 56.) See also Van Hollen III, 738 F.3d at 791 ("[T]he state on its side does not defend the statute as protecting fetal life but only as protecting the health of women who have abortions."); id. at 795 ("The state concedes that its only interest pertinent to this case is in the health of women who obtain abortions."). The State cannot completely change its argument after trial without unfairly prejudicing plaintiffs' case. Even if it could, the State's original position is compelled by Casey, which requires that a challenged regulation "designed to foster the health of a woman seeking an abortion" must similarly be health-related. Van Hollen II, 2013 WL 3989238, at *12 & n. 27.
The court is mindful of the Supreme Court's admonition in Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), that
Id. at 489, 75 S.Ct. 461 (internal citations omitted). Even so, the Supreme Court also recognized an exception to this general rule where the differential treatment is discriminatory. Id. ("The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."). Based on the court's earlier finding that the Legislation was adopted pursuant to an improper purpose—namely, to restrict access to abortion, prevent women from obtaining wanted abortions, and hinder abortion providers' ability to provide such services—the court further finds that plaintiffs have demonstrated that Act 37 violates their substantive Due Process and Equal Protection rights (Counts IV and V). See Planned Parenthood of Ind. and Ky., Inc. v. Comm'r, Ind. Dep't of Health,
IT IS ORDERED that:
