Much like similar laws being argued within the last few weeks in Mississippi and Alabama, it is unclear from the media coverage which way U.S. District Judge William Conley will lean in the case. Of all instances where lawsuits are brought around the country, however, Wisconsin’s shows the greatest possibility of the requirement being upheld. If that happens, it could start a ripple effect which would put not only Wisconsin but many other states into a pre-Roe like situation where abortion moves back to major epicenters across the country.
Admitting privileges, a recent favorite legislative strategy of anti-abortion activists that swept the country starting in 2012, rely on the idea that in order to enhance patient safety, doctors who perform abortions should be able to follow a patient to a particular hospital in the case of a complication. While this might sound good to the uninformed, there are a number of good reasons this is neither medically necessary nor practical: abortion isn’t a traditional “surgical” procedure (first trimester abortions involve no cutting or stitching up), it seldom involves a patient being fully unconscious, and, unlike traditional ambulatory surgical centers that these requirements are modeled after, patients are usually traveling as much as one or two hundred miles to get there and go back home soon after.
In the rare instance that there is a complication, she is far more likely to be at home than near the clinic for that doctor to assist her. Even if an incident did occur at a clinic, medical best practices dictate that a patient go to the nearest hospital, not a further away one just because of privileges, and no hospital would refuse care to a patient in physical danger.
Overall, admitting privileges for doctors doing abortions are so medically unnecessary – and even potentially harmful – that the American Congress of Obstetricians and Gynecologists put out an official statement objecting to the requirement.
That didn’t stop states across the country from passing them in a deliberately rapid succession. In order to work, these targeted regulation of abortion procedure (TRAP) laws needed to be passed within a small window of time. The goal was to close as many clinics as possible without closing all clinics in a state, which would cause the regulation to potentially be viewed as creating an undue burden to abortion access, making it unconstitutional.
Allowing the new regulations to go into effect will close clinics. Yet challenging them is a double-edged sword. When North Dakota passed an admitting privileges law, Red River Women’s Clinic, the state’s only clinic, sued because it was unable to get privileges at any of the nearby hospitals, either because of the hospitals’ religious affiliations or because the hospital had a threshold for minimum number of admissions per year that abortion clinics didn’t meet due to their low instances of complications.
The suit was eventually settled when the Fargo clinic did obtain privileges, although the clinic made it clear that it still believed the requirement itself was unconstitutional. Despite that caveat, the settlement set a rather dangerous precedent for similar laws, and one that Wisconsin could be on the verge of reinforcing.
Although more than one provider originally sued to block Wisconsin’s admitting privileges law when it was first signed, by the time the court case actually began, only one clinic – Affiliated Medical Services in Milwaukee, Wisconsin – was still unable to get privileges. The Planned Parenthood Clinic in Appleton, Wisconsin was able to find a local hospital willing to work with them, but as for AMS, the doctors received no answer.
Judge Conley appeared to be as frustrated by the lack of response as the AMS staff itself. Todd Richmond of the Associated Press reports that Conley told AMS's attorneys that if they stopped trying to follow up with the hospitals in order to ensure Christensen didn't get privileges and that the lawsuit can continue, that was a “horrendous idea."
“I’m being asked to strike down a law,” Conley said. “I take no pleasure in that. If there’s a way to get privileges short of that, you should do that.”
The statement from the judge implies that his preference is to keep the law intact, and that the best result would be that the final clinic receives privileges so that he does not need to strike it down. That may be the best result for the judge, for the clinic, and even for the people locally who will need its services. But for abortion rights as a whole, what that would do is once more give the impression that non-medically necessary admitting privilege requirements are neither unconstitutional, unnecessary, nor in some cases impossible to obtain.
For other states, where the stigma for providing abortions is much, much higher, that could be a death sentence for local clinics.
In Mississippi, where the last clinic in the state has been hanging on by a thread for years, the danger could be less, since making an entire state abortion-free appears to be an obvious “undue burden” violation. As we already saw in Texas, however, it takes very few clinics to be considered “accessible.” For those states who’s admitting privileges bills could close most – but not every – clinic in the state, that’s nearly as bad, and, since these states all border each other, they are compounding what is already low access regions into almost no access whatsoever.
What clinics are left behind will overflow, as patients are forced to find their next closest option. In Wisconsin this has already been outed as a major concern. Planned Parenthood, the only other Milwaukee clinic, has stated that they already have a two to three week wait for patients to get in for terminations, and that if AMS is closed that wait will likely extend to eight to 10 weeks in order to handle the additional 2,500 patients a year.
That would make almost every patient need to seek a second trimester procedure, which increases the price drastically, or go to the next closest available city “abortion friendly” city – Chicago. If that occurs, America will essentially be transported back to the days before abortion was legal in all states, with pregnant people traveling to the closest large city that will have multiple clinics to be able to handle the massive influx of patients. Locally, in abortion hostile states, the procedure will mostly disappear.
While doctors obtaining admitting privileges may put a Band-Aid on the issue, it doesn’t fix the underlying problem. There are far too many ways to end privileges once a hospital has become the gatekeeper for a clinic remaining open. Either it could stop offering privileges because of a merger with a religious affiliate, which is happening more and more across the country. Or it could grant them to one provider but stop offering them to new doctors, allowing physicians to retire out of their system. They could fall susceptible to the types of protests that are popping up throughout the country in order to pressure hospitals out of any association with abortion. Or they could fall prey to new laws forbidding them to enter into agreements if they receive state funding, like we’ve seen recently in Ohio.
It will still be weeks before we learn how Judge Conley will rule in Wisconsin. By the time he announces his decision, AMS physicians could actually receive the privileges they need, making the current court case moot. If that does happen, however, it would be one more unjustified affirmation that the law itself is neither burdensome nor harmful to the right to a legal, safe abortion. It may put off the access issue for a while, but it won’t solve it forever.
When those privileges eventually fall through – and there is no doubting that at some point they will – we will quickly find ourselves at a point where abortion access is in crisis once again.
Robin Marty is a freelance writer, speaker and activist, and the author of Crow After Roe: How Women's Health Is the New Separate But Equal and How to Change That. Robin's articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.