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Posner v. The Arbitrary Abortion Obstacle Course

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The Wisconsin statute seeking to shut down a majority of the state’s abortion clinics for no legitimate reason is exactly the kind of law you’d like to sic Richard Posner (who memorably eviscerated the asserted constitutionality of bans of “partial birth” abortion) on. Fortunately, Posner was on the panel that heard the appeal, and the results are outstanding:

The fixing of such a short deadline for obtaining admitting privileges, a deadline likely to deny many women the right to an abortion for a period of months while the abortion doctors tried to obtain those privileges, could be justified consistently with the Supreme Court’s abortion jurisprudence only if there were reason to believe that the health of women who have abortions is endangered if their abortion doctors don’t have admitting privileges. The district court correctly found that there is no reason to believe that. A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital which will treat her regardless of whether her abortion doctor has admitting privileges.

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As it happens, complications from an abortion are both rare and rarely dangerous-a fact that further attenuates the need for abortion doctors to have admitting privileges.

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The state presented no other evidence of complications from abortions in Wisconsin that were not handled adequately by the hospitals in the state. And no documentation of a medical need for requiring abortion doctors to obtain admitting privileges had been presented to the Wisconsin legislature when it was deliberating on the bill that became the statute challenged in this case. The only medical evi-dence that had been submitted to the legislature had come from a doctor representing the Wisconsin Medical Society- and she opposed requiring that abortion doctors obtain admitting privileges. The only testimony presented to the legislature that admitting privileges are important to continuity of care was presented by a representative of Wisconsin Right to Life who happens not to be a doctor.

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It’s also true, though according to the cases just quoted irrelevant, that a 90-mile trip is no big deal for persons who own a car or can afford an Amtrak or Greyhound ticket. But more than 50 percent of Wisconsin women seeking abortions have incomes below the federal poverty line and many of them live in Milwaukee (and some north or west of that city and so even farther away from Chicago). For them a round trip to Chicago, and finding a place to stay overnight in Chi-cago should they not feel up to an immediate return to Wis-consin after the abortion, may be prohibitively expensive. The State of Wisconsin is not offering to pick up the tab, or any part of it. These women may also be unable to take the time required for the round trip away from their work or the care of their children. The evidence at trial, credited by the district judge, was that 18 to 24 percent of women who would need to travel to Chicago or the surrounding area for an abortion would be unable to make the trip.

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But what makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions regarding women’s health-and the abridgment challenged in this case would actually endanger women’s health. It would do that by reducing the number of abortion doctors in Wisconsin, thereby increasing the waiting time for obtaining an abortion, and that increase would in turn compel some women to defer abortion to the second trimester of their pregnancy-which the studies we cited earlier find to be riskier than a first-trimester abortion. For abortions performed in the first trimester the rate of major complications is 0.05-0.06 percent (that is, between five one-hundredths of 1 percent and six one-hundredths of 1 percent). It is 1.3 per-cent for second-trimester abortions-between 22 and 26 times higher.

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Opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure- abortion-that rarely produces a medical emergency. A number of other medical procedures are far more dangerous to the patient than abortion, yet their providers are not re-quired to obtain admitting privileges anywhere, let alone within 30 miles of where the procedure is performed.

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But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden-a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it- and if so it is unconstitutional.

The evidence of benefits that was presented to the Texas legislature and discussed by the Fifth Circuit was weak; in our case it’s nonexistent. The principal witness for the State of Wisconsin, Dr. Thorp, mentioned earlier, testified that the But he could not substantiate that proposition and admitted that both rates are very low. His expert report states that there are “increased risks of death for women electing [abortion] compared to child-birth,” but the studies he cited measured long-term mortality rates rather than death resulting from an abortion, and also failed to control for socioeconomic status, marital status, or a variety of other factors relevant to longevity. [cites omitted] In contrast, the plaintiffs’ expert Dr. Laube tendered a more apt study which concluded that the risk of death associated with childbirth is 14 times higher than that associated with abortion. [cite omitted]

Dr. Thorp acknowledged that the number of abortion providers is declining, but attributed this (again without substantiation) not to harassment but to our society’s “progressing in its recognition of what constitutes human life.” And he agreed as we noted earlier that admitting privileges are no more necessary for abortion than for other outpatient surgical procedures. Neither Thorp nor any other witness for the defendants was able to cite a case in which a woman who had a complication from an abortion wasn’t properly treated for it because her abortion doctor lacked admitting privileges. The evidence was heavily weighted against the defendants. We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion.

TL;DR: if statutory requirements that make abortion far less accessible, placing a disproportionate burden on the poorest women, while having no relationship to a legitimate state interest do not constitute an “undue burden,” the term has no meaning.

To reiterate, if laws like the Wisconsin law are upheld by the Supreme Court, Roe has been overruled.

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