An appellate court on Dec. 3 questioned a lawyer for the state of Wisconsin about why lawmakers singled out abortion clinics in requiring their doctors to have admitting privileges at nearby hospitals, as judges heard arguments about the hotly debated law.
The sometimes-contentious, hourlong hearing before the 7th Circuit Court of Appeals was meant to help a three-judge panel decide whether to lift a temporary block on the law imposed by a lower court.
Such laws in Wisconsin, as well as similar laws in Texas and other states, have recently become a focus of debate over abortion. Critics say they're designed to stymie abortion rights, while supporters say the laws protect women's health.
Judges often play devil's advocate during oral arguments, so questions they pose aren't always an indication of which way they are leaning. But the three judges in Chicago, led by Judge Richard Posner, were especially aggressive in their questioning of Daniel Lennington, Wisconsin's assistant attorney general.
At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.
"Why did they start with abortion clinics? Because it begins with the letter 'A'?" Posner asked.
Lennington answered, "I don't have a conjecture (about why)." Later, in response to similar questions, Lennington said it was the prerogative of legislators to act as they did.
Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.
At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."
Another panelist, Judge David Hamilton, cited provisions in the bill that allow parents and grandparents to sue for emotional harm if it turns out a doctor who performed an abortion lacked admitting privileges. Theoretically, the judge said, that could mean relatives of a rapist filing lawsuits after abortions.
Posner, and the other appellate judge, Daniel Manion, did not immediately issue a ruling. Their decision, which will require a majority, isn't expected for at least several weeks.
The judges asked Planned Parenthood attorney Carrie Flaxman if she knew how many abortion clinic doctors would be hurt by the legislation. She said she didn't have a number. She said doctors she knows who applied for admitting privileges still haven't received final word — and she said one application was rejected.
In August, U.S. District Judge William Conley of the Western District of Wisconsin extended his hold on a portion of the law that requires abortion providers to have admitting privileges, Conley's order stems from a lawsuit Planned Parenthood and Affiliated Medical Services filed in July. Attorneys for the state asked the 7th Circuit Court of Appeals to stay the injunction - leading to Tuesday's oral arguments.
Despite Flaxman's comment that the number of impacted doctors is unclear, opponents of the law have long argued that it will force a Planned Parenthood clinic in Appleton and an AMS clinic in Milwaukee to close because abortion providers at both facilities lack admitting privileges.
Tea party Republican Gov. Scott Walker signed the GOP-authored law on July 5. A similar mandate was included in sweeping legislation that Texas lawmakers approved in July after weeks of protests. That law also faces a legal challenge, though a different federal appeals court allowed it to take effect in the meantime.
Utah and Tennessee already enforce admitting-privileges requirements for either the doctor or the abortion clinic's medical director. Federal judges in Alabama have imposed temporary injunctions, and state judges blocked similar laws in North Dakota and Kansas.