The trial over a Wisconsin law that requires abortion providers to obtain admitting privileges at a nearby hospital or face prosecution came to a close last week, with federal District Court Judge William Conley expressing both frustration at the law and the inability of those challenging it to explain why area hospitals were not responding to admitting privileges requests.
Like admitting privileges requirements passed in states like Texas, Alabama, North Dakota, Mississippi, and Louisiana, supporters of the requirement in SB 206, which has been on hold since July, insist the law is necessary to protect patient safety. In support of that claim attorneys for the state offered the testimony of Lena Wood, an Oshkosh woman who claimed she was hospitalized after becoming ill following an abortion nearly 20 years ago and that her provider never followed up with her. Wood, an anti-choice activist, admitted under cross-examination that she did not understand her medical records, and there were no facts to back up her assertion that it was the abortion that had caused her hospitalization.
The state’s second witness in support of the law was James Linn, an obstetrician and gynecologist at Columbia St. Mary’s and advisor to Wisconsin Right to Life, the main group supporting the law. During his testimony, Linn said he hoped Affiliated Medical Services in Milwaukee—one the providers challenging the law—would close so that fewer legal abortions would be performed in the state. The clinic, the only one in the state that performs abortions beyond 19 weeks, faces closure under the law because its doctors have so far been unable to obtain the required admitting privileges. Judge Conley said he was “bewildered” by the fact that local hospitals had not yet stated whether they would grant privileges to Affiliated Medical Services providers and ordered the parties to continue to pursue privileges, indicating he would order the hospital to respond if they continued to evade the request. One of those providers, Dr. Dennis Christensen, testified he had been pursuing admitting privileges at two Milwaukee hospitals for months but had not had any response from the hospitals. Christensen testified he believed the lack of response from the hospitals is connected to the hospital credentialing officials’ demand for information on patients he has treated in a hospital. Christensen testified he has no such data to provide in response to their demand because he hasn’t treated an abortion patient in a hospital for at least a decade.
“The fact that we’ve managed to keep our patients out of the hospital appears to be a detriment to getting hospital privileges,” he said.
A ruling on whether or not the law will go into effect is not expected from Judge Conley for at least a month, and in the meantime he ordered the parties to continue to pursue obtaining hospital privileges. Should providers be able to obtain those privileges, it could resolve, at least temporarily, the legal challenge. That was the case in North Dakota, where the state’s only abortion clinic faced closure under the state’s admitting privileges requirement. But just as a trial over the constitutionality of North Dakota’s law was about to begin, Sanford Health, a Dakotas-based health-care system, granted admitting privileges to the providers, prompting attorneys for the state and those challenging the law to reach a settlement and end the legal challenge. At the close of last week’s trial, Judge Conley suggested a similar possibility for Wisconsin, noting he was troubled by the inflexibility of the law.
“I’m being asked to strike down a law,” said Conley. “I take no pleasure in that. If there’s a way to get privileges short of that you should do that.”