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Posner Affirms Prelim. Injunction in Wis. Abortion-Law Challenge

By Gabriella Khorasanee, JD | Last updated on

We've all heard about State Sen. Wendy Davis' filibuster to stop passage of a Texas abortion law that, among other things, required abortion-clinic doctors to have admitting privileges at a hospital less than 30 miles away.

Well, Texas is not the only state to have such a statute; five other states have almost identical statutes: Mississippi, North Dakota, Tennessee, Missouri, and the one at issue in this case -- Wisconsin. Other states that have similar statutes, with less stringent requirements, include Arizona, Florida, Indiana, Kansas, and Utah.

These new laws requiring doctors to have admitting privileges are the new trend among pro-life politicians to further restrict women's access to abortion (which by the way, since they may not have gotten the memo, is legal).

Factual and Procedural Background

The Wisconsin law was passed on Friday, July 5 and required compliance the following Monday, July 8. In effect, doctors performing abortions needed to have admitting privileges at hospitals within a 30-mile radius -- notwithstanding the fact that it takes months to get admitting privileges.

That same day, Planned Parenthood of Wisconsin and Milwaukee Women's Medical Services ("Planned Parenthood") filed a claim in federal court alleging federal law violations under 42 U.S.C. § 1983, and simultaneously moved for a temporary restraining order, which the district court granted. The TRO was converted to a preliminary injunction, and trial was stayed pending the state's appeal of the grant of preliminary injunction to the Seventh Circuit.

Preliminary Injunction

To determine whether preliminary injunction is proper, the Seventh Circuit noted that because of the strict timeline in which to make the decision, the district court's decision is given deference. That said, the Seventh Circuit affirmed the grant of preliminary injunction -- and narrowed it to the facts presented thus far in the case.

Because the law had an unachievable deadline for gaining admitting privileges that would effectively remove most abortion options in the state, the Seventh Circuit found that plaintiffs faced greater harm than the state.

Professor Posner

We would be remiss to note that it seems that for most of the opinion, Judge Posner was wearing his professor hat. While the only issue before the court was whether the grant of preliminary injunction was proper, Judge Posner brought up many issues -- evidentiary, factual, and standing, to name a few -- that will undoubtedly come up in litigation in each of the other 10 states that have laws like the one here.

The opinion reads more like an outline of how to approach a case such as this one, and is required reading for any attorney trying any case that challenges an abortion law.

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