No. 15-1736
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PLANNED PARENTHOOD OF WISCONSIN, INC., et al.,
Plaintiffs-Appellees,
v.
BRAD D. SCHIMEL, et al.,
Defendants-Appellants.
On Appeal From The United States District Court
For The Western District Of Wisconsin
No. 13-cv-465, The Honorable William M. Conley, Presiding
BRIEF OF AMICI CURIAE THE AMERICAN COLLEGE OF OBSTETRICIANS
AND GYNECOLOGISTS, THE AMERICAN MEDICAL ASSOCIATION, AND
THE WISCONSIN MEDICAL SOCIETY IN SUPPORT OF PLAINTIFFS-APPELLEES’
BRIEF SEEKING AFFIRMANCE OF THE DISTRICT COURT’S ORDER
Alan S. Gilbert
Leah R. Bruno
Kristine M. Schanbacher
DENTONS US LLP
233 South Wacker Drive, Suite 5900
Chicago, IL 60606
Phone: (312) 876-8000
Fax: (312) 876-7934
Attorneys for Amici Curiae
American College of Obstetricians and
Gynecologists, American Medical Association,
and Wisconsin Medical Society
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:
15-1736
Short Caption:
Planned Parenthood of Wisconsin, Inc. v. Schimel
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
American College of Obstetricians and Gynecologists
American Medical Association
Wisconsin Medical Society
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Dentons US LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
None
Attorney's Signature: S/
Alan S. Gilbert
Date:
6/24/2015
Attorney's Printed Name:
Alan S. Gilbert
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
X
No
Address:
Dentons US LLP
233 South Wacker Drive, Suite 5900, Chicago, Illinois 60606
Phone Number:
312-876-8000
Fax Number:
312-876-7934
E-Mail Address:
alan.gilbert@dentons.com
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
American LegalNet, Inc.
www.FormsWorkFlow.com
rev. 01/15 GA
APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:
15-1736
Short Caption:
Planned Parenthood of Wisconsin, Inc. v. Schimel
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
American College of Obstetricians and Gynecologists
American Medical Association
Wisconsin Medical Society
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Dentons US LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
None
Attorney's Signature: S/
Leah R. Bruno
Date:
6/24/2015
Attorney's Printed Name:
Leah R. Bruno
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
No
X
Address:
Dentons US LLP
233 South Wacker Drive, Suite 5900, Chicago, Illinois 60606
Phone Number:
312-876-8000
Fax Number:
312-876-7934
E-Mail Address:
leah.bruno@dentons.com
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
American LegalNet, Inc.
www.FormsWorkFlow.com
rev. 01/15 GA
APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:
15-1736
Short Caption:
Planned Parenthood of Wisconsin, Inc. v. Schimel
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
American College of Obstetricians and Gynecologists
American Medical Association
Wisconsin Medical Society
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Dentons US LLP
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
None
Attorney's Signature: S/
Kristine M. Schanbacher
Date:
6/24/2015
Attorney's Printed Name:
Kristine M. Schabacher
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
No
X
Address:
Dentons US LLP
233 South Wacker Drive, Suite 5900, Chicago, Illinois 60606
Phone Number:
312-876-8000
Fax Number:
312-876-7934
E-Mail Address:
kristine.schanbacher@dentons.com
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
i
TABLE OF CONTENTS
STATEMENT OF AMICI CURIAE ......................................................................................1
SUMMARY OF ARGUMENT.............................................................................................3
ARGUMENT.........................................................................................................................4
I. ABORTION IS A SAFE MEDICAL PROCEDURE THAT ACT 37 ARBITRARILY
TARGETS FOR DISPARATE TREATMENT................................................................4
A. Peer Reviewed Scientific Research Demonstrates Abortion Is An
Extremely Safe Medical Procedure. ..............................................................4
B. Physicians Who Perform Other Outpatient Medical Procedures In
Wisconsin, Including Procedures With Higher Risks of Morbidity And
Mortality Than Abortion, Are Not Required To Obtain Admitting
Privileges........................................................................................................6
II. ACT 37’S ADMITTING PRIVILEGES REQUIREMENT IS AN UNNECESSARY
REGULATION THAT HAS NO POSITIVE EFFECT ON THE QUALITY OF
HEALTH CARE THAT A PATIENT RECEIVES..........................................................8
A. Act 37’s Requirement That Abortion Providers Obtain Admitting
Privileges Is Inconsistent With Accepted Medical Practice. .........................9
B. Other Policies and Procedures Already In Place Effectively Help
Abortion Providers Procure Urgent Care For A Patient In The Event
Of A Complication.........................................................................................11
III. ACT 37 WOULD NEGATIVELY IMPACT THE HEALTH AND WELLBEING OF
WOMEN IN WISCONSIN BECAUSE IT WOULD DELAY AND/OR PREVENT
ACCESS TO ABORTION PROVIDERS IN WISCONSIN................................................13
A. Delaying And/Or Preventing A Woman’s Access to Safe, Legal
Abortion Procedures Has Serious Health Consequences...............................13
B. In the Likely Event That AMS Is Forced To Close Due to Act 37,
Access to Abortion In Wisconsin Will Be Significantly Reduced,
Which Is Harmful To The Health And Well-being Of Women In
Wisconsin.......................................................................................................16
C. Act 37 Would Make It Even More Difficult To Recruit Abortion
Providers To The State...................................................................................18
CONCLUSION......................................................................................................................19
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Gonzales v. Carhart,
550 U.S. 124 (2007)...................................................................................................................2
Greenville Women’s Clinic v. Bryant,
222 F.3d 157 (4th Cir. 2000) .....................................................................................................2
Hodgson v. Minnesota,
497 U.S. 417 (1990)...................................................................................................................2
Planned Parenthood of Greater Texas Surgical Health Services v. Abbott,
769 F.3d 330 (5th Cir. 2014) .....................................................................................................2
Planned Parenthood of Wisconsin, Inc. v. J.B. Van Hollen,
738 F.3d 786 (7th Cir. 2013) cert. denied, 134 S. Ct. 2841 (2014).........................................10
Planned Parenthood Southeast, Inc. v. Strange,
33 F. Supp. 3d 1330, 1355 (M.D. Ala.), as corrected (Oct. 24, 2014),
supplemented, 33 F. Supp. 3d 1381 (M.D. Ala. 2014) and amended, No.
2:13CV405-MHT, 2014 WL 5426891 (M.D. Ala. Oct. 24, 2014)........................14, 15, 16, 17
Planned Parenthood Arizona, Inc. v. Humble,
753 F.3d 905 (9th Cir. 2014) .....................................................................................................2
Simopoulos v. Virginia,
462 U.S. 506 (1983)...................................................................................................................2
Stenberg v. Carhart,
530 U.S. 914 (2000)...................................................................................................................2
Stuart v. Camnitz,
774 F.3d 238 (4th Cir. 2014) .....................................................................................................2
Statutes
Wis. Stat. Ann. § 253.095...................................................................................................... passim
Other Authorities
ACOG Committee Opinion No. 459, The Obstetric-Gynecologic Hospitalist,
(July 2010) http://www.acog.org/-/media/Committee-Opinions/Committee-
on-Patient-Safety-and-Quality-
Improvement/co459.pdf?dmc=1&ts=20150624T1610468624 ...............................................10
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
iii
ACOG Committee Opinion No. 613, Increasing Access to Abortion, (Nov. 2014)
http://www.acog.org/-/media/Committee-Opinions/Committee-on-Health-
Care-for-Underserved-Women/co613.pdf?dmc=1&ts=20150610T1549031081....8, 11, 12, 15
ACOG, Guidelines for Women’s Health Care (4th ed. 2014).......................................................11
ACOG Practice Bulletin No. 143, Medical Management of First-Trimester
Abortion, Clinical Management Guidelines for Obstetrician-Gynecologist,
Vol. 123, 676 (Mar. 2014).........................................................................................................4
Cleland, K., et al., Significant Adverse Events and Outcomes After Medical
Abortion, 121 Obstetrics & Gynecology 166 (2013).............................................................4, 5
Gold, B. MD, et al., Unanticipated Admission to the Hospital Following
Ambulatory Surgery, 262 J. Am. Med. Assoc. 3008 (1989)......................................................7
Gold R. and Nash E., TRAP Laws Gain Political Traction While Abortion Clinics-
-and the Women They Serve--Pay the Price, Vol. 16 No. 2 Guttmacher Policy
Review, 7 (2013)............................................................................................................8, 11, 12
Grossman D., et al., The public health threat of anti-abortion legislation, Vol. 89
Contraception, 73 (2014).........................................................................................................15
Grossman, D., et al., Self-induction of abortion among women in the United
States, 18 Reprod, Health Matters 136 (2010)...................................................................14, 15
Harris M. and Chung F., Complications of General Anesthesia, 40 Clin. Plastic
Surg. 503 (2013) ........................................................................................................................7
Inst. of Med., Crossing the Quality Chasm: A New Health System for the 21st
Century, (2011)..........................................................................................................................9
Jerman, J. and Jones, R., Secondary Measures of Access to Abortion Services in
the United States, 2011 and 2012: Gestational Age Limits, Cost, and
Harassment, (2014)
http://www.guttmacher.org/pubs/journals/j.whi.2014.05.002.pdf....................................13, 15
Jones, B. and Weitz, T., Legal Barriers to Second-Trimester Abortion Provision
and Public Health Consequences, 99 Am. J. Pub. Health 623 (April 2009).............................5
Ko, C. et al., Complications of Colonoscopy: Magnitude and Management, 20
Gastrointestinal Endoscopy Clinics of N. Am. 659 (2010).......................................................8
Nat’l Abortion Fed’n, 2015 Clinical Policy Guidelines..........................................................11, 12
Paraskevaidis, E., et al., Bleeding After Loop Electrosurgical Excision Procedure
Performed in Either the Follicular or Luteal Phase of the Menstrual Cycle: A
Randomized Trial, Vol. 99 No. 6 Obstetrics & Gynecology, 999 (June 2002).........................7
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
iv
Raymond, E. and Grimes, D., The Comparative Safety of Legal Induced Abortion
and Childbirth in the United States, 119 Obstetrics & Gynecology 215 (Feb.
2012)....................................................................................................................................6, 17
Sutthichon, P. and Kietpeerakool, C., Perioperative Complications of an
Outpatient Loop Electrosurgical Excision Procedures: A Review of 85 7
Consecutive Cases, 10 Asian Pac. J. Cancer Prevention 351 (2009) ........................................7
Warriner I. and Shah I, eds., Preventing Unsafe Abortion and its Consequences:
Priorities for Research and Action, Guttmacher Institute (2006)
http://www.who.int/reproductivehealth/publications/unsafe_abortion/0939253
763.pdf?ua=1 ...........................................................................................................................14
Weitz, T. et al., Safety of Aspiration Abortion Performed by Nurse Practitioners,
Certified Nurse Midwives, and Physician Assistants Under a California Legal
Waiver, 103 Am. J. Public Health 454 (2013).......................................................................4, 5
Wis. Dep’t. of Health Servs., Div. of Pub. Health, Office of Heath Informatics,
2013 Reported Induced Abortions In Wisconsin (Aug. 2014)
https://www.dhs.wisconsin.gov/publications/p4/p45360-13.pdf...............................................5
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
STATEMENT OF AMICI CURIAE
The American College of Obstetricians and Gynecologists (“ACOG” or the
“College”), the American Medical Association (“AMA”), and the Wisconsin Medical Society
(“Society”) submit this brief Amici Curiae in support of Plaintiffs-Appellees.
1
ACOG is a non-profit educational and professional organization that was founded in
1951 and represents approximately 95% of all board-certified obstetricians and gynecologists
practicing in the United States. The College’s objectives are to foster improvements in all
aspects of health care of women; to establish and maintain the highest possible standards for
education; to publish evidence-based practice guidelines; to promote high ethical standards; and
to encourage contributions to medical and scientific literature. The College’s companion
organization, the American Congress of Obstetricians and Gynecologists (the “Congress”), is a
professional organization dedicated to the advancement of women’s health and the professional
interests of its members. Sharing more than 56,000 members, including 853 in Wisconsin, the
College and the Congress are the leading professional associations of physicians who specialize
in the health care of women. The College recognizes that abortion is an essential health care
service and opposes laws regulating medical care that are unsupported by scientific evidence and
that are not necessary to achieve an important public health objective.
The AMA is the largest professional association of physicians, residents, and medical
students in the United States. Additionally, through state and specialty medical societies and
other physician groups seated in its House of Delegates, substantially all US physicians,
1
Pursuant to Federal Rule of Appellate Procedure 29, undersigned counsel for Amici Curiae
certify that: no party’s counsel authored this brief in whole or in part; no party or party’s counsel
contributed money that was intended to fund preparing or submitting this brief; and no person or
entity, other than the Amici Curiae, its members, or its counsel, contributed money intended to
fund the preparation or submission of this brief.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
2
residents, and medical students are represented in the AMA’s policy making process. AMA
members practice and reside in all states, including Wisconsin. The objectives of the AMA are
to promote the science and art of medicine and the betterment of public health.
ACOG and the AMA have previously been granted leave to appear as Amicus Curiae in
various courts throughout the United States including this Court and the Supreme Court. In
addition, ACOG and the AMA’s work has been cited frequently by the Supreme Court and other
federal courts seeking authoritative medical data regarding childbirth and abortion.
2
The Society is a non-profit association of physicians, chartered by the legislative
assembly of the Territory of Wisconsin in 1841 to promote the science and art of medicine to
improve public health. Today, the Society has over 12,700 physician, resident, and medical
student members, and continues its mission to improve the health of Wisconsin’s citizens by
supporting and strengthening physicians’ ability to practice high-quality medicine.
2
See, e.g., Stenberg v. Carhart, 530 U.S. 914, 932-936 (2000) (quoting ACOG’s amicus brief
extensively and referring to ACOG as among the “significant medical authority” supporting the
comparative safety of the abortion procedure at issue); Hodgson v. Minnesota, 497 U.S. 417, 454
n.38 (1990) (citing ACOG’s amicus brief in assessing disputed parental notification
requirement); Simopoulos v. Virginia, 462 U.S. 506, 517 (1983) (citing ACOG publication in
discussing “accepted medical standards” for the provision of obstetric-gynecologic services,
including abortions); Gonzales v. Carhart, 550 U.S. 124, 170-71, 175-78, 180 (2007) (Ginsburg,
J., dissenting) (referring to ACOG as “experts” and repeatedly citing ACOG’s amicus brief and
congressional submissions regarding abortion procedures); Greenville Women’s Clinic v. Bryant,
222 F.3d 157, 168 (4th Cir. 2000) (extensively discussing ACOG’s guidelines and describing
those guidelines as “commonly used and relied upon by obstetricians and gynecologists
nationwide to determine the standard and the appropriate level of care for their patients”);
Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 916-17, 930 (9th Cir. 2014) (citing
ACOG and the AMA’s amicus brief as further support for a particular medical regimen); Stuart
v. Camnitz, 774 F.3d 238, 251-52, 254, 255 (4th Cir. 2014) (citing ACOG’s and the AMA’s
amicus brief in assessing how an ultrasound requirement exceeded the bounds of traditional
informed consent and interfered with physicians’ medical judgment.); and Planned Parenthood
of Greater Texas Surgical Health Servs. v. Abbott, 769 F.3d 330, 351 fn.9 (5th Cir. 2014) (Jones,
J., dissenting) (citing ACOG’s amicus brief in support of dissent’s determination that the district
court did not clearly err by finding that admitting privileges for abortion providers does not
improve the quality of care a patient receives in the rare event of a severe complication).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
3
The Society is actively involved in legislative affairs, policy research, and the review of
legal issues that affect its members and their patients. The Society has previously been granted
leave to appear as Amicus Curiae in Wisconsin state and appellate courts as well as the state’s
District Courts and the Seventh Circuit Court of Appeals, including earlier proceedings in this
case in which both the Society and ACOG were Amici Curiae.
The Society and the AMA join this brief on their own behalves and as representatives of
the Litigation Center of the AMA and the State Medical Societies. The Litigation Center is a
coalition among the AMA and the medical societies of each state, plus the District of Columbia,
whose purpose is to represent the viewpoint of organized medicine in the courts.
SUMMARY OF ARGUMENT
Women are entitled to timely, high-quality health care, including access to abortion
services. Legislatures should not interfere with patient care, patient access to safe medical
procedures, and/or accepted medical practice without a strong public health justification.
Scientific data establishes that abortion is an extremely safe medical procedure. The requirement
of Wisconsin Act 37 (“Act 37”) that abortion providers obtain “admitting privileges in a hospital
within 30 miles of where the abortion procedure is performed” is not based on scientific research
or data, has no legitimate public health justification, and does not reflect the realities of modern
medical practice.
3
Rather, Act 37’s admitting privileges requirement would significantly delay
and/or restrict access to abortion procedures in Wisconsin, which would detrimentally impact the
health and well-being of women in Wisconsin. Act 37 creates an unnecessary hurdle for
Wisconsin women who seek an abortion and should not be allowed to take effect.
3
Section 1 of 2013 Wisconsin Act 37, Wis. Stat. Ann. § 253.095. See Addendum A for the full
text of Section 1 of Act 37.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
4
For the reasons set forth below, Amici Curiae urge this Court to affirm the District
Court’s March 24, 2015 Order declaring Section 1 of Act 37 to be unconstitutional and
permanently enjoining its enforcement.
ARGUMENT
I. ABORTION IS A SAFE MEDICAL PROCEDURE THAT ACT 37 ARBITRARILY TARGETS
FOR DISPARATE TREATMENT.
Scientific research and empirical data conclusively establish that abortion is a very low-
risk, safe medical procedure. Other outpatient procedures have higher complication rates. Yet,
under Wisconsin law no outpatient providers, other than abortion providers, are required to
obtain admitting privileges. Act 37 irrationally targets physicians who perform abortion
procedures for disparate regulation.
A. Peer Reviewed Scientific Research Demonstrates Abortion Is An Extremely
Safe Medical Procedure.
There are two types of abortion: (1) medication abortion, in which abortion is achieved
by administering medications, most commonly mifepristone in combination with misoprostol,
4
and (2) surgical abortion, which involves the use of instruments to evacuate the contents of the
uterus. See Doc. No. 266 p. 8; Trial Exhibit (“Ex.”) 50 ¶ 3. Both types of abortion are extremely
safe procedures in the United States. See Ex. 50 ¶ 7. In fact, two large scale, respected, peer
reviewed studies
5
conclusively establish that complications associated with legal abortions are
minimal and complications that require hospitalization are extraordinarily rare. See Doc. No.
266 pp. 30-31. The first study examined 233,805 medication abortions performed in the United
4
See ACOG Practice Bulletin No. 143, Medical Management of First-Trimester Abortion,
Clinical Management Guidelines for Obstetrician-Gynecologist, Vol. 123, 676 (Mar. 2014).
5
The two peer reviewed studies are: Cleland, K., et al., Significant Adverse Events and
Outcomes After Medical Abortion, 121 Obstetrics & Gynecology 166 (2013) and Weitz, T. et al.,
Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and
Physician Assistants Under a California Legal Waiver, 103 Am. J. Public Health 454 (2013).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
5
States and found that fewer than one percent (0.65%) of the patients undergoing this procedure
experienced a significant complication and far fewer (0.06%) experienced a complication
requiring hospitalization.
6
The second study analyzed 11,487 first-trimester surgical abortions
and found that only 1.27% of these patients experienced minor complications that required
outpatient treatment and only 0.052% experienced a major complication that required hospital
admission.
7
Further, the most recent Wisconsin state data demonstrates that abortion, whether
medical or surgical and whether performed in the first trimester or second trimester, is extremely
safe.
8
Indeed, the state’s data indicates that the rates of complication in Wisconsin are even
lower than the national averages. Specifically, only 0.21% of Wisconsin residents, who had
abortions throughout pregnancy, experienced complications of any kind.
9
Not only are abortion
complications exceedingly rare;
10
in fact, women are more likely to experience complications
carrying a pregnancy to term and after giving birth than with an abortion. As discussed in
6
Cleland, K., et al., supra note 5, at 169.
7
Weitz, T., et al., supra note 5, at 458.
8
Wis. Dep’t. of Health Servs., Div. of Pub. Health, Office of Heath Informatics, 2013 Reported
Induced Abortions In Wisconsin, Table 9 (Aug. 2014)
https://www.dhs.wisconsin.gov/publications/p4/p45360-13.pdf. 2013 is the most recent year for
which data is available.
9
Id. Additionally, this low rate of complication is arguably higher than the actual occurrence of
complications because this report counts each type of complication, i.e. infection, retained
products, cervical laceration, etc., as a separate complication even if the same patient experiences
multiple issues. See id.
10
See Cleland, K., et al., supra note 5, at 169; Weitz, T., et al., supra note 5, at 458; and Wis.
Dep’t. of Health Servs., supra note 8, at Table 9; see also Jones B. and Weitz, T., Legal Barriers
to Second-Trimester Abortion Provision and Public Health Consequences, 99 Am. J. Pub. Health
623, 624 (April 2009) (“Abortion is very safe in both the first and second trimesters. Mortality
risk is approximately .6 deaths per 100,000 abortions, and the risk of major complication is less
than 1%. The risk associated with abortion increases with the weeks of pregnancy …. Second-
trimester abortion, however, is still a very safe procedure.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
6
Dr. Douglas Laube’s expert report, “every pregnancy-related complication is more common
among women having live births than among those having abortions” and “[n]early three percent
of all women who deliver vaginally have a prolonged hospital admission or early re-admission to
the hospital [and with] a cesarean delivery … the figure is three times higher.” Ex. 50 ¶¶ 7-8.
In addition to the minimal complications associated with abortions, the mortality rate
associated with abortion is also extremely low, only 0.0006%. For comparison purposes, the risk
of death associated with childbirth is approximately 14 times higher, at a mortality rate of
0.0088%.
11
As demonstrated by the prevailing peer reviewed scientific research, and as recognized
by the District Court, the “overwhelming evidence demonstrates that abortion is safe[.]” See
Doc. No. 266 p. 36; see also Doc. No. 244 7:24-8:3. Given the safety of abortion procedures and
the very low risk of hospitalization, Act 37’s potential restriction on abortion providers for
purported safety reasons has no basis in science or fact.
B. Physicians Who Perform Other Outpatient Medical Procedures In
Wisconsin, Including Procedures With Higher Risks of Morbidity And
Mortality Than Abortion, Are Not Required To Obtain Admitting Privileges.
Wisconsin law does not require physicians who perform outpatient medical procedures,
other than physicians who perform abortions, to obtain admitting privileges. See Doc. No. 200 ¶
14 (“The State of Wisconsin does not require physicians who provide surgery at ambulatory
surgery centers or in other outpatient settings to have hospital admitting privileges.”); see also
Doc. 266 p. 25 (“At trial, defendants conceded that an admitting privileges requirement has
never been imposed on any outpatient procedure other than the provision of abortion services.”)
11
ACOG Practice Bulletin No. 135, Second-Trimester Abortion, Clinical Management
Guidelines for Obstetrician-Gynecologist, Vol. 121, 1394, 1397 (June 2013); see also Raymond,
E. and Grimes, D., The Comparative Safety of Legal Induced Abortion and Childbirth in the
United States, 119 Obstetrics & Gynecology 215, 216 (Feb. 2012).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
7
(emphasis in original). The scientific research and data does not support the singling out of
abortion procedures for such disparate regulation.
Abortion is just as safe, if not safer, than other gynecological procedures such as cervical
biopsies, endometrial biopsies, IUD insertions, and “LEEP”procedures
12
that doctors perform in
outpatient settings without the requirement of admitting privileges. See Doc. No. 244 34:3-36:9;
41:24-43:16. To give just one example, the rate of heavy bleeding following a LEEP procedure
is more than double the rate of heavy bleeding following a surgical abortion, and far greater than
the risk associated with a medical abortion.
13
Yet physicians that perform LEEP procedures in
outpatient settings are not required to obtain admitting privileges under Wisconsin law.
The arbitrariness of Act 37 becomes even clearer when one compares abortion
procedures to other surgical procedures performed in outpatient settings, particularly those
procedures that, unlike abortion procedures, use general anesthesia.
14
For example, procedures
like laparoscopic hysterectomies and vaginal hysterectomies have higher complication rates than
abortion procedures, yet physicians performing these outpatient procedures are not required to
obtain admitting privileges under Wisconsin law. See Ex. 50 ¶ 23 and see also Doc. No. 266
12
Loop Electrosurgical Excision Procedures, often referred to as “LEEP” procedures, are a
common gynecological procedure utilized to remove abnormal cervical tissue.
13
See Sutthichon, P. and Kietpeerakool, C., Perioperative Complications of an Outpatient Loop
Electrosurgical Excision Procedures: A Review of 857 Consecutive Cases, 10 Asian Pac. J. of
Cancer Prevention 353 (2009); see also Paraskevaidis, E., et al., Bleeding After Loop
Electrosurgical Excision Procedure Performed in Either the Follicular or Luteal Phase of the
Menstrual Cycle: A Randomized Trial, Vol. 99 No. 6 Obstetrics & Gynecology, 999 (June 2002).
14
General anesthesia itself carries additional risk, including cardiovascular and respiratory
complications. See, e.g., Harris M. and Chung F., Complications of General Anesthesia, 40 Clin.
Plastic Surg. 503 (2013) (discussing risk of complications associated with general anesthesia);
see also Gold, B. MD, et al., Unanticipated Admission to the Hospital Following Ambulatory
Surgery, 262 J. Am. Med. Assoc. 3008, 3008-3010 (1989) (general anesthesia was one factor
associated with increased likelihood of post-surgery hospital admission.).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
8
pp. 25 & 27. The same is true for colonoscopies which have a mortality rate of 0.0345%, more
than 50 times greater than the mortality rate for abortions.
15
Yet despite this substantially higher
mortality rate, Wisconsin law does not require physicians who perform outpatient colonoscopies
to obtain admitting privileges similar to Act 37.
It makes no scientific or common sense to burden abortion providers with an admissions
privilege requirement when physicians who perform other outpatient procedures that carry
similar or significantly greater risks of complications and mortality have no such requirement.
16
Act 37’s requirement that abortion providers obtain admitting privileges is arbitrary, not
scientifically based, and not supported by the medical data.
II. ACT 37’S ADMITTING PRIVILEGES REQUIREMENT IS AN UNNECESSARY REGULATION
THAT HAS NO POSITIVE EFFECT ON THE QUALITY OF HEALTH CARE THAT A
PATIENT RECEIVES.
As the District Court observed (Doc. No. 266 pp. 6-7), Wisconsin’s leading medical and
public health associations, including ACOG and the Society, opposed Act 37 because, among
other reasons, requiring physicians who perform outpatient services to have admitting privileges
is inconsistent with accepted medical practice. A physician’s focus on ensuring prompt,
15
See Ko, C. MD, et al., Complications of Colonoscopy: Magnitude and Management, 20
Gastrointestinal Endoscopy Clinics of N. Am. 659, 659-671 (2010) and ACOG Practice Bulletin
No. 135, supra note 11, at p. 1397.
16
ACOG Committee Opinion No. 613, Increasing Access to Abortion, 1 (Nov. 2014)
http://www.acog.org/-/media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-
Women/co613.pdf?dmc=1&ts=20150610T1549031081 (Target Regulation of Abortion Provider
(“TRAP”) laws are “enacted in some states, under the guise of promoting patient safety, single
out abortion from other procedures and impose medically unnecessary requirements designed to
reduce access to abortion …. [these TRAP laws] do not improve patient safety or quality of
care.”); see also Gold R. and Nash E., TRAP Laws Gain Political Traction While Abortion
Clinics--and the Women They Serve--Pay the Price, Vol. 16 No. 2 Guttmacher Policy Review, 7
(2013) (“TRAP[] laws … have nothing to do with protecting women and everything to do with
shutting down clinics …. [TRAP laws are] increasingly common, but they only make sense if
the goal is to make abortion less accessible.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
9
effective medical care does not require that the medical provider have admitting privileges.
17
The AMA has joined ACOG and the Society here because Act 37’s admitting privileges
requirement is contrary to today’s standard medical practice and because other policies and
procedures already in place enable physicians to procure urgent care for their patients when
necessary.
A. Act 37’s Requirement That Abortion Providers Obtain Admitting Privileges
Is Inconsistent With Accepted Medical Practice.
In today’s medical practice, patients who undergo an abortion procedure, like all
outpatient procedures, are provided aftercare instructions in the rare event that the patient
experiences a complication after leaving the clinic. These instructions encourage patients to
contact their clinic if they experience any complication so that the clinic can assess whether the
patient should return for further treatment or in the case of a severe, urgent complication, be
advised to go to the nearest hospital. See Ex. 50 ¶ 13. Complications that are not severe or
urgent are appropriately treated in the abortion clinic or other outpatient clinic, and whether an
abortion provider has admitting privileges is irrelevant.
In the extraordinary instance when a woman experiences a severe and urgent
complication following an abortion, she will obtain the treatment she needs from the emergency
17
See Inst. of Med., Crossing the Quality Chasm: A New Health System for the 21st Century, 8-
9 (2011) (stating that patient care should be guided by certain rules, including that “[p]atients
should receive care whenever they need it and in many forms, not just face-to-face visits …
[and] that the health care system should be responsive at all times (24 hours a day, every day)
and that access to care should be provided over the Internet, by telephone, and by other means in
addition to face-to-face visits” and that “[c]lincians and institutions should actively collaborate
and communicate to ensure an appropriate exchange of information and coordination of care.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
10
room physician and/or on-call specialist
18
at the hospital closest to her, which in many cases is
not the same hospital at which her abortion provider has admitting privileges, if he/she has them.
See Ex. 50 ¶ 13. In such situations, the emergency room physician and/or on-call specialist take
over the treatment of a patient admitted to the hospital, which includes identifying key issues,
concerns, and methods of treatment for the patient without any regard to whether the outpatient
provider has admitting privileges. See Doc. No. 266 pp. 44-45 (citation omitted) (emphasis in
original) (“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” and “[e]mergency rooms operate by triaging patients
depending on the seriousness of their condition, not based on whether … the outpatient provider
has admitting privileges.”).
19
In fact, even the most experienced abortion provider might not
have the relevant expertise to treat a patient in an urgent situation. Today’s health care model of
specialized medical care seeks to ensure that a patient receives the most appropriate care at every
stage (whether on an inpatient or outpatient basis), not that a single physician handle every issue
that may arise in the course of a patient’s care. As the District Court recognized, it is accepted
18
Often hospitals now employ full-time, hospital-based physicians, referred to commonly as
“hospitalists.” Hospitalists do not have the same type of demands as physicians with private
practices and often have greater experience in treating patients with conditions that they face
when transferred to a hospital or emergency care setting. See ACOG Committee Opinion No.
459, The Obstetric-Gynecologic Hospitalist, (July 2010) http://www.acog.org/-
/media/Committee-Opinions/Committee-on-Patient-Safety-and-Quality-
Improvement/co459.pdf?dmc=1&ts=20150624T1610468624.
19
See also Planned Parenthood of Wisconsin, Inc. v. J.B. Van Hollen, 738 F.3d 786, 793 (7th
Cir. 2013) cert. denied, 134 S. Ct. 2841 (2014) (“The trend in the hospital industry is for the
hospital to require the treating physician to hand over his patient 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. Wisconsin is trying to buck that trend—
but only with regard to abortions, though there is no evidence that the complications to which
abortion can give rise require greater physician continuity than other outpatient procedures.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
11
medical practice for hospital-based physicians to take over the care of a patient and whether the
abortion provider has admitting privileges has no impact on the course of the patient’s treatment.
See Doc. No. 266 pp. 44-48; see also Ex. 50 ¶ 16.
Act 37’s privileges requirement is completely out of step with modern medical practice
and today’s prevalent health care model.
B. Other Policies and Procedures Already In Place Effectively Help Abortion
Providers Procure Urgent Care For A Patient In The Event Of A
Complication.
One reason that abortion is so safe in the United States is that abortion providers follow
rigorous, evidence-based guidelines that ensure outpatient and hospital physicians work together
for the health and safety of the patient. As discussed above, in the unlikely event of a
complication requiring emergency treatment, whether an abortion provider has admitting
privileges will not impact the treatment that a patient receives.
20
There are existing, national
guidelines that require abortion providers to have an emergency plan in place to ensure prompt,
quality, emergency treatment.
21
Under these guidelines, an abortion provider contacts the
receiving hospital and conveys the patient’s complications, prior treatment, medications, and
vital signs in order to ensure continuity of care. See Doc. No. 266 pp. 42-43; see also Ex. 50
20
See also ACOG Committee Opinion No. 613, supra note 16 (requiring physicians who
perform abortions to obtain hospital admitting privileges “do[es] not improve patient safety or
quality of care.”).
21
ACOG, Guidelines for Women’s Health Care (4th ed. 2014) (stating that physicians who
perform abortions should have a plan to provide prompt emergency services in the event of a
complication); Nat’l Abortion Fed’n, 2015 Clinical Policy Guidelines, 42 (“Protocols for the
management of medical emergencies must be in place. These protocols must include indications
for emergency transport and written, readily available directions for contacting external
emergency assistance”). “The National Abortion Federation first published its Clinical Policy
Guidelines in 1996, which are updated annually using a process developed by a scientific advisor
affiliated with the [F]ederal Agency for HealthCare Research and Quality …. Planned
Parenthood Federation of America maintains similarly detailed requirements for affiliates
offering abortion services.” Gold R. and Nash, E., supra note 16.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
12
¶ 15. Having an emergency plan in place is the prevailing medical practice, as an emergency
plan allows the physician providing the abortion to effectively and efficiently navigate the steps
to take during a severe, urgent complication so that the patient receives appropriate emergency
care as soon as possible.
22
Admitting privileges do nothing to further an outpatient physician’s
ability to effectuate such an emergency plan or to ensure the safety of a patient receiving urgent
care.
As the District Court found, both Planned Parenthood of Wisconsin, Inc. (“PPW”) and
Milwaukee Women’s Medical Services d/b/a Affiliated Medical Services (“AMS”), Wisconsin’s
primary outpatient abortion providers, already have protocols and policies in place that establish
a plan for their respective abortion providers to follow in the event of an emergency
complication. See Doc. No. 266 p. 43. Additionally, as the District Court recognized, both PPW
and AMS comply with Wis. Admin. Code MED § 11.04(1)(g), which is also medically
unnecessary, but nonetheless requires abortion providers, and only abortion providers, to have
transfer arrangements with a local hospital for admission of patients requiring emergency care.
See id. at p. 43. Requiring admitting privileges within 30 miles of an abortion clinic does
nothing to improve upon existing patient protections
23
or existing Wisconsin law, and thus does
nothing to improve the care of Wisconsin women. See Doc. No. 121 ¶ 3.
22
Nat’l Abortion Fed’n, supra note 21, at p. 42 ( “Appropriate management of abortion
emergencies reduces morbidity and mortality.”).
23
ACOG Committee Opinion No. 613, supra note 16 (admitting privileges and other TRAP
laws “do not improve patient safety or quality of care.”); see also Gold R. and Nash E., supra
note 16 (“Requiring admitting privileges does little, if anything, to add to the[] existing patient
protections. But it does establish a requirement that is very difficult, and in some cases
impossible, for providers to meet.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
13
III. ACT 37 WOULD NEGATIVELY IMPACT THE HEALTH AND WELLBEING OF WOMEN IN
WISCONSIN BECAUSE IT WOULD DELAY AND/OR PREVENT ACCESS TO ABORTION
PROVIDERS IN WISCONSIN.
Delaying and/or preventing access to legal abortion causes significant physical and
mental harm to women. If Act 37’s admitting privileges requirement is allowed to take effect it
will, at a minimum, result in a significant delay for abortion procedures in Wisconsin. Such a
result would be detrimental to the health and safety of women in Wisconsin.
A. Delaying And/Or Preventing A Woman’s Access to Safe, Legal Abortion
Procedures Has Serious Health Consequences.
As discussed previously, scientific data has proven that legal abortion is an extremely
safe medical procedure (see pp. 4-6 supra), though the risks increase the longer that an abortion
is delayed. See Ex. 50 p. 4, fn. 6 (citations omitted).
24
Therefore, any delay that affects when a
woman can obtain an abortion negatively impacts the safety of the procedure and needlessly
subjects the woman to higher risks. At the same time, a delay in receiving an abortion could also
potentially push a woman entirely out of the pre-viability zone, preventing her from receiving an
abortion at all (see Doc. No. 266 p. 75) and thereby forcing her to continue an unwanted
pregnancy and subjecting her to the higher risks of childbirth.
25
24
See also, ACOG Practice Bulletin No. 135, supra note 11, at p. 1397 (“The mortality rate
associated with abortion is low (0.6 per 100,000 legal, induced abortions) …. [However,
a]bortion-related mortality increases with each week of gestation, with a rate of 0.1 per 100,000
procedures at 8 weeks of gestation or less, and 8.9 per 100,000 procedures at 21 weeks of
gestation or greater.”).
25
See Jerman J. and Jones R., Secondary Measures of Access to Abortion Services in the United
States, 2011 and 2012: Gestational Age Limits, Cost, and Harassment, Women’s Health Issues
(2014) http://www.guttmacher.org/pubs/journals/j.whi.2014.05.002.pdf (in 2009 “an estimated
4,000 women were unable to obtain abortions because they were past facilities’ gestational age
limits by the time they made it there.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
14
Of even more concern, women who are delayed and/or prevented from obtaining a legal
abortion may turn to illegal, unsafe methods to terminate an unwanted pregnancy.
26
Women
who attempt to self-induce an abortion use a variety of techniques, including “inserting objects
into the uterus, ingesting harmful substances, exerting external force, or using medications such
as misoprostol.”
27
Of these self-induced abortion methods, women are increasingly resorting to
self-induced medication abortion when access to timely, legal abortion is restricted.
28
Although
medication abortion is very safe when properly performed (see pp. 4-5 supra), when women are
forced to go outside the established health care system to obtain a medication abortion, these
women face a host of dangers, including misbranded drugs and incomplete or incorrect
26
See Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1355 (M.D. Ala.), as
corrected (Oct. 24, 2014), supplemented, 33 F. Supp. 3d 1381 (M.D. Ala. 2014) and amended,
No. 2:13CV405-MHT, 2014 WL 5426891 (M.D. Ala. Oct. 24, 2014) (“with the advent of illegal
sales over the internet, there is significant risk that women who are unable to procure abortions
would turn to unsupervised and unsafe use of abortion-inducing medications.”); see also
Warriner I. and Shah I, eds., Preventing Unsafe Abortion and its Consequences: Priorities for
Research and Action, Guttmacher Institute (2006)
http://www.who.int/reproductivehealth/publications/unsafe_abortion/0939253763.pdf?ua=1
(“Legal obstacles to the provision of safe abortion services give women little choice but to resort
to unsafe abortion when faced with an unintended pregnancy.”); and Grossman, D., et al., Self-
induction of abortion among women in the United States, 18 Reprod. Health Matters 136 (2010).
27
Grossman, et al. supra note 26, at 136.
28
See Grossman, D., et al., The public health threat of anti-abortion legislation, Vol. 89
Contraception, 73 (2014)
http://www.utexas.edu/cola/orgs/txpep/_files/pdf/Grossman,White,Hopkins,Potter-
PublicHealthThreatofAnti-abortionLegislation-Contraception-2014.pdf (2012 survey of 318
women seeking an abortion found that 7% of the women reported attempting a self-induced
abortion prior to coming to an abortion clinic; whereas a 2008 national survey found that 2.6% of
women reported attempting a self-induced abortion).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
15
information about how to take the medication and the appropriate dosage. These problems can
lead to serious consequences.
29
Not only does restricted access to legal abortion needlessly increase a woman’s risk of
serious complications and even death; it also negatively impacts a woman’s mental, emotional,
and financial health. As the District Court acknowledged, some women who are comfortable
having a first trimester abortion are not comfortable having a second trimester abortion. See
Doc. No. 266 p. 75. And as a result of delayed access, women may be denied their right to
choose whether to have a legal abortion.
30
Further, second trimester abortions are generally
more expensive than first trimester abortions,
31
which can also cause women to experience
additional needless emotional stress and discomfort. Indeed, the greater cost alone may entirely
prevent some women from obtaining an abortion.
Delaying and/or preventing access to legal abortion is detrimental to women’s health and
well-being on multiple levels.
32
In order to prevent these significant physical, mental, emotional,
and financial harms, women in Wisconsin must be able to access timely, legal abortion
procedures -- Act 37 is contrary to this goal.
29
Strange, 33 F. Supp.3d at 1362 (“there are serious dangers for women who take unknown
drugs which advertise themselves to be abortion-inducing, but which may not actually contain
what is listed on the label.”); see also Grossman, D., et al., supra note 28, at p. 74 (misoprostol in
the second trimester increases “risk of hemorrhage that might require surgical intervention or
transfusion, as well as the risk of uterine rupture” if inappropriately high dosages are used).
30
See Grossman, D., et al., supra note 26, at p. 140 (several women “whose attempts [at self-
induced abortion] were unsuccessful decided to continue the[ir] pregnancy” because they did not
realize their attempted self-induced abortion failed until one or more months later, “by which
time they felt they were too far along to have an abortion.”).
31
Jerman, J. and Jones, R., supra note 25 (“In 2011 and 2012, the median charge for a surgical
abortion at 10 weeks gestation was $495 …. The median charge for an abortion at 20 weeks’
[sic] gestation … was $1,350.”).
32
ACOG Committee Opinion No. 613, supra note 16, at p. 5.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
16
B. In the Likely Event That AMS Is Forced To Close Due to Act 37, Access to
Abortion In Wisconsin Will Be Significantly Reduced, Which Is Harmful To
The Health And Well-being Of Women In Wisconsin.
The District Court found that in Wisconsin there are currently four clinics where women
can obtain abortions: AMS operates one clinic and PPW operates three. See Doc. No. 266 p. 10.
At trial AMS established that in 2013, it performed approximately 2,500 abortions; further, AMS
is the only outpatient provider in Wisconsin that currently offers abortions from 18.6 weeks
LMP. See Doc. No. 243 29:15-17 & Doc. No. 266 pp. 73-74.
Should AMS close, a likely outcome if Act 37 takes effect,
33
PPW would be unable to
accommodate the thousands of women who would be left in need of abortion services. See Doc.
No. 243 149:22-150:5.
34
But even assuming PPW could find a way to accommodate these
women, PPW could not immediately perform abortions from 18.6 through 22 weeks LMP.
35
Accordingly, if AMS closes there is no other abortion provider in Wisconsin who could
immediately perform abortions after 18.6 weeks LMP.
Requiring women to travel out of state in order to obtain a timely abortion will decrease
the number of Wisconsin women who can successfully obtain a legal abortion.
36
Traveling out
33
The District Court found, “if Act 37 takes effect, AMS will likely close.” Doc. No. 266 p. 72.
34
The District Court also found that due to the shortage of abortion providers, lack of space,
support staff, equipment, and infrastructure, PPW demonstrated that it “will not be able to absorb
the demand for abortions should AMS close.” See id. at pp. 73-74; see also Doc. No. 243 152:6-
16.
35
In order to perform abortions past 19.6 weeks LMP, PPW would need to obtain a waiver from
Planned Parenthood Federation. See Doc. No. 243 151:10-15. Even if PPW obtained this
waiver, PPW would need to make multiple large infrastructure changes, before PPW could being
performing abortions after 18.6 weeks LMP. See Doc. No. 243 151:16-152:5.
36
Strange, 33 F. Supp. 3d at 1356 (explaining studies show a woman who lives farther from
abortion facilities will be less likely to obtain an abortion and that one study found “an increase
of 100 miles in travel distance reduces the abortion rate by almost 22%.”).
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
17
of state to procure an abortion is very burdensome, because it adds additional time and monetary
costs, such as time away from work and childcare, gas, tolls, and hotel room stays. See Doc. No.
266 p. 77. In Wisconsin, many of the women who seek abortions are at or below the federal
poverty threshold (see id. at p. 76) and for some of these women, the additional out of state travel
costs can reach a tipping point in which the costs become too much and as a result, these women
are forced to forego an abortion. See Doc. No. 243 264:5-9 & 270:4-23. As pointed out above,
women who are forced to continue an unwanted pregnancy face higher health risks than do
women who are able to procure an abortion.
37
Not only is traveling out of state to procure an abortion prohibitively burdensome for
many women, such travel would significantly diminish the continuity of care these women
receive following an abortion.
38
For example, a woman who has to travel out of state to obtain
an abortion “would almost certainly be more likely to miss a scheduled follow-up visit” at the
abortion clinic.
39
Out of state travel also inhibits the continuity of care in the rare event that a
woman experiences a minor complication, because she will likely experience the complication
after she returns home and therefore, she will probably seek treatment at a different, nearby,
clinic.
40
At the same time, since Act 37 would likely have the effect of shuttering at least one
abortion provider in Wisconsin, the distance a woman from within the state will need to travel to
obtain a timely, legal abortion will likely increase. Enactment of Act 37 will result in many
37
ACOG Practice Bulletin No. 135, supra note 11, at p. 1397 & Raymond, E. and Grimes, D.,
supra note 11, at p. 216.
38
Strange, 33. F.Supp.3d at 1372.
39
Id.
40
Id.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
18
abortion patients traveling much farther than the Act’s 30 mile radius to obtain her procedure.
This end result essentially nullifies any stated purpose for requiring the admitting privileges in
the first place.
If Act 37 is allowed to take effect, a significant number of women in Wisconsin will be
delayed and/or prevented from obtaining timely, legal abortion procedures in Wisconsin and it
will diminish the continuity of care for those women who leave Wisconsin to obtain an abortion.
Simply, Act 37 would have a profoundly negative impact on the health and safety of women in
Wisconsin who seek abortions.
C. Act 37 Would Make It Even More Difficult To Recruit Abortion Providers
To The State.
As recognized by the District Court, several factors, including the harassment that
abortion providers experience, lack of training opportunities, personal and professional
stigmatization, and limitations in a physician’s hospital or practice group contract, make it
difficult to recruit and retain abortion providers in Wisconsin. See Doc. No. 266 pp. 58-61; see
also Doc. No. 233 70:1-71:20. Act 37’s admitting privileges requirement would make
recruitment of abortion providers even more difficult. See Doc. No. 266 p. 59. This additional
hurdle heaped onto an area of medicine that already faces significant barriers to recruitment
presents a real and serious threat to the continued availability of timely, legal abortion
procedures in Wisconsin. See id. at p. 61. Without the ability to recruit physicians who perform
abortions, the number of physicians who can and will perform abortions in Wisconsin will
inevitably decrease over time. Any decrease in the number of physicians in Wisconsin who are
able and willing to perform abortions necessarily decreases the ability of women in Wisconsin to
obtain a timely, legal abortion.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
19
Act 37’s privileges requirement is a threat to the continued availability of abortion
providers in Wisconsin, which is ultimately a threat to women’s health in Wisconsin. Therefore,
in the interest of the health, well-being, and safety of the women of Wisconsin, Act 37’s
admitting privileges requirement should not be allowed to take effect.
CONCLUSION
Act 37’s admitting privileges requirement is a harmful, counterproductive, and
unnecessary regulation that stands in stark contrast with scientific research, data, and the realities
of modern medical practice. Further, whether an abortion provider has admitting privileges will
not have a positive impact on the medical treatment a patient receives in the event of a
complication requiring emergency hospital care. However, requiring admitting privileges for
abortion providers in Wisconsin will have serious, immediate, and long term effects on the health
and well-being of women in the state.
For all the foregoing reasons, Amici Curiae, the American College of Obstetricians and
Gynecologists, the American Medical Association, and the Wisconsin Medical Society, urge this
Court to uphold the District Court’s March 24, 2015 Order.
Dated: June 24, 2015 Respectfully submitted,
/s/Alan S. Gilbert
Alan S. Gilbert
Leah R. Bruno
Kristine M. Schanbacher
DENTONS US LLP
233 South Wacker Drive, Suite 5900
Chicago, IL 60606
Phone: (312) 876-8000
Fax: (312) 876-7934
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
20
Attorneys for Amici Curiae American College of
Obstetricians and Gynecologists; American
Medical Association; and Wisconsin Medical
Society
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
CERTIFICATE OF COMPLIANCE
In accordance with Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,
I certify that the foregoing brief complies with the type-volume limitation provided by
Rules 29(d) and 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure. This brief
contains 6,350 words, beginning with the words “Statement of Amici Curiae” and ending
with the words “Respectfully Submitted” in the Conclusion section, as recorded by the
word count of the Microsoft Word software application used to prepare the brief.
/s/ Alan S. Gilbert
Alan S. Gilbert
Attorney for Amici Curiae
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
CERTIFICATE OF SERVICE
The undersigned, an attorney for the American College of Obstetricians and
Gynecologists, the American Medical Association, and the Wisconsin Medical Society,
certifies that on June 24, 2015, the foregoing document was electronically filed with the
Clerk of the Court using the CM/ECF system which will send notification of such filing
to the following participants in the case, who are registered CM/ECF users:
Talcott Camp Clayton P. Kawski
Laurence J. Dupuis Brian P. Keenan
Roger K. Evans Maria S. Lazar
Carrie Y. Flaxman Mailee R. Smith
Jennifer Lee
Renee Paradis
Lester A. Pines
Diana Salgado
/s/ Alan S. Gilbert
Alan S. Gilbert
Attorney for Amici Curiae
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
ADDENDUM A
Wis. Stat. Ann. § 253.095 - Requirements to perform abortions:
(1) Definition. In this section, “abortion” has the meaning given in s. 253.10(2)(a).
(2) Admitting privileges required. No physician may perform an abortion, as defined in s.
253.10(2)(a), unless he or she has admitting privileges in a hospital within 30 miles of the
location where the abortion is to be performed.
(3) Penalty. Any person who violates this section shall be required to forfeit not less than
$1,000 nor more than $10,000. No penalty may be assessed against the woman upon
whom the abortion is performed or induced or attempted to be performed or induced.
(4) Civil remedies. (a) Any of the following individuals may bring a claim for damages,
including damages for personal injury and emotional and psychological distress, against a
person who performs, or attempts to perform, an abortion in violation of this section:
1. A woman on whom an abortion is performed or attempted.
2. The father of the aborted unborn child or the unborn child that is attempted to be
aborted.
3. Any grandparent of the aborted unborn child or the child that is attempted to be
aborted.
(b) A person who has been awarded damages under par. (a) shall, in addition to any
damages awarded under par. (a), be entitled to not less than $1,000 nor more than
$10,000 in punitive damages for a violation that satisfies a standard under s. 895.043(3).
(c) A conviction under sub. (3) is not a condition precedent to bringing an action,
obtaining a judgment, or collecting the judgment under this subsection.
(d) Notwithstanding s. 814.04(1), a person who recovers damages under par. (a) or (b)
may also recover reasonable attorney fees incurred in connection with the action.
(e) A contract is not a defense to an action under this subsection.
(f) Nothing in this subsection limits the common law rights of a person that are not in
conflict with sub. (2).
(5) Confidentiality in court proceedings. (a) In every proceeding brought under this
section, the court, upon motion or sua sponte, shall rule whether the identity of any
woman upon whom an abortion was performed or induced or attempted to be performed
or induced shall be kept confidential unless the woman waives confidentiality. If the
court determines that a woman's identity should be kept confidential, the court shall issue
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
orders to the parties, witnesses, and counsel and shall direct the sealing of the record and
exclusion of individuals from courtrooms or hearing rooms to the extent necessary to
safeguard the woman's identity from public disclosure. If the court issues an order to keep
a woman's identity confidential, the court shall provide written findings explaining why
the woman's identity should be kept confidential, why the order is essential to that end,
how the order is narrowly tailored to its purpose, and why no reasonable less restrictive
alternative exists.
(b) Any person, except for a public official, who brings an action under this section shall
do so under a pseudonym unless the person obtains the written consent of the woman
upon whom an abortion was performed or induced, or attempted to be performed or
induced, in violation of this section.
(c) This section may not be construed to allow the identity of a plaintiff or a witness to be
concealed from the defendant.
Case: 15-1736 Document: 29 Filed: 06/26/2015 Pages: 32
