Wednesday, December 2, 2015

Highlights and lowlights from the 7th Circuit's recent abortion decision

The Seventh Circuit decided a few weeks ago to strike as unconstitutional a Wisconsin law that required the state's abortion providers to have admitting privileges at a hospital within 30 miles of the abortion clinic.  The case is Planned Parenthood of Wisconsin, Inc., v. Schimel.  Recall that the Fifth Circuit considered the same issue a few years ago, and upheld a similar Texas admitting privileges law, even though it closed about half of the state's 40 abortion clinics, leaving the only ones operational in major metropolitan areas in the northern and eastern parts of the state.  I have written about the Texas laws extensively here.  The Texas laws are the subject of a case now pending before the U.S. Supreme Court.

In the Seventh Circuit case, Judge Posner wrote for the majority, with Judge Manion dissenting.  I have elsewhere railed against the failure of litigants and judges to discuss rural women in these cases--even more so the failure to discuss these vulnerable women with compassion for and understanding of their circumstances.  In this post, I simply want to highlight what the judges did and did not say about poverty, rurality and distance in relation to the undue burden standard.

First, the bad news--the words "rural" and "rurality" are nowhere to be found in the opinion.  The good news, however, is that Judge Posner did mention poor women (as he had in his earlier opinion granting a restraining order against the law's operation).  Regarding distance (and the relevance of abortion clinics across state lines), he wrote:
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 Chicago should they not feel up to an immediate return to Wisconsin 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.
(emphasis added).  This is helpful in that it takes seriously the financial obstacles facing poor women, but given that clinic closures across the state are at stake, it is somewhat oddly focused on urban women--those in the Milwaukee metropolitan area.  Further, while the prior Posner opinion enjoining the law discussed the burden of distance on women in the northern part of the state--those served by the Appleton clinic--this opinion discusses the need for the Milwaukee clinic to expand to meet the state's needs if the Appleton clinic closes.  

In that earlier, December, 2013 opinion, Posner wrote of both poverty and the burden of distance, specifically for women in the less populous northern part the state:

Some patients will be unable to afford the longer trips they’ll have to make to obtain an abortion when the clinics near them shut down—60 percent of the clinics’ patients have incomes below the federal poverty line. One of the clinics that will close is Planned Parenthood’s clinic in Appleton, which, as shown in the accompanying map, is in the approximate center of the state. The remaining abortion clinics are in Madison or Milwaukee, about 100 miles south of Appleton. A woman who lives north of Appleton who wants an abortion may (unless she lives close to the Minnesota border with Wisconsin and not far from an abortion clinic in that state) have to travel up to an additional 100 miles each way to obtain it. And that is really 400 miles—a nontrivial burden on the financially strapped and others who have difficulty traveling long distances to obtain an abortion, such as those who already have children. For Wisconsin law requires two trips to the abortion clinic (the first for counseling and an ultrasound) with at least twenty-four hours between them. Wis. Stat. § 253.10(3)(c). When one abortion regulation compounds the effects of another, the aggregate effects on abortion rights must be considered.
(emphasis added).  Posner even included this nifty map, to the delight of the legal geographer in me:

But this recent November, 2015, opinion does not discuss the burden of distance on the women in northern Wisconsin if the Appleton clinic closes and those women must travel to Milwaukee for abortion services.  This seems odd in light of the attention given to distance in regard to the Milwaukee women. 

All in all, the Posner opinion from last month uses the word "distance" three times and the word "travel" just once.  Compare that to the dissent by Judge Manion, who uses the word "distance" three times and the word "travel" four times.  Here's a key excerpt from Manion's dissent, which relies heavily on the recent Fifth Circuit decisions:  
Chicago is approximately 93 miles from Milwaukee—or a one hour and forty minute drive. The Fifth Circuit recently held that Texas’s admitting-privileges law did not impose an undue burden on a woman’s right to choose abortion because “travel of less than 150 miles for some women is not an undue burden under Casey.” Abbott II, 748 F.3d at 598 (citation omitted). Before Abbott II, the Sixth Circuit similarly concluded that there was no undue burden under Casey where one of two Ohio clinics to conduct 18–24 week abortions was closed due to lack of a transfer agreement with a local hospital, even when the remaining clinic was located over 200 miles away. See Baird, 438 F.3d at 599, 605. Consistent with these authorities, it is well within the scope of Newman to conclude that the 93-mile trip from Milwaukee to Chicago to obtain an abortion does not impose an undue burden on a woman’s ability to choose abortion. 305 F.3d at 688.
Also, I just came across this from Manion's opinion in the December, 2013, decision enjoining operation of the Wisconsin law: 
The number of women who seek abortions living in the areas near the closed clinics is apparently very small compared to those living near the clinics that will continue to operate. Thus, the admitting-privileges requirement likely only will compel a few rural women to drive longer distances. So it is far from clear that a “significant number” of women will be prevented from obtaining abortions.
This is the same numbers game the Fifth Circuit has been playing in declaring that the 17% of Texas's reproductive age women who are farther than 150 miles from an abortion provider do not constitute a "significant number."  That finding essentially renders these women--many of them rural women--constitutionally irrelevant in the context of a facial challenge to the laws' constitutionality.  

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