Here & Now

Lester Pines and Rick Esenberg Discuss Abortion Lawsuit

Frederica Freyberg:

Now back to Madison for news out of the US courthouse. On Monday, US district judge William Conley placed a hold on part of the newly-signed abortion law. Conley blocked enactment of the law until a challenge can be heard on its requirement that doctors who perform abortions must have admitting privileges to a hospital within 30 miles of their clinics. The restraining order will be in place until July 17, when a hearing in Conley’s courtroom is scheduled. Attorney Lester Pines will be there representing Planned Parenthood Wisconsin which challenged the law. He’s here in Madison. State justice department attorneys who will defend the law are not commenting. Marquette University adjunct professor of law, Rick Esenberg, believes they can prove constitutionality. He joins us from the Marquette campus in Milwaukee. Thanks to both of you for being here.

Lester Pines:

It’s a pleasure.

Rick Esenberg:

Thank you.

Frederica Freyberg:

First to you, Rick Esenberg. What was your reaction to this injunction out of Judge Conley’s courtroom?

Rick Esenberg:

Well, on the one hand, maybe I’m not surprised because what we had was a hearing on a motion for a temporary restraining order, and under those circumstances a judge tends to hear only one side of the case, right? At the time that he had issued his ruling, the state had not even had an opportunity to file a written response. And so having read his decision, I understand what Lester’s clients are saying, but we have yet to hear what the state is going to say in defense of this law. And I think one of the things that we’re going to hear is testimony from physicians who will say, yes, requiring admitting privileges is a reasonable, and perhaps the best way, to assure continuity of care for women who are having what is an outpatient surgical procedure in which things can go wrong and hospitalizations can be required.

Frederica Freyberg:

Let me turn to Lester Pines and ask your reaction to the injunction.

Lester Pines:

Well, first of all, we were pleased that the judge issued the temporary restraining order. We expect the judge to issue a preliminary injunction as well, because there is no medical benefit. There’s no maternal health benefit from this requirement. In fact, the purpose of the requirement is to put up a barrier to access to the opportunity to terminate a pregnancy, to have an abortion, and that’s the sole purpose of this. There is no medical purpose behind this.

Frederica Freyberg:

In fact, Rick Esenberg Judge Conley had stated that the US Supreme Court says that a medical requirement must be reasonably directed to the preservation of maternal health and says that requiring abortion doctors to have these admitting privileges at hospitals provides no medical benefit. You take exception with that opinion on his part?

Rick Esenberg:

Well, right. And that’s what Judge Conley said. Based upon the record that had existed at the time that he had to issue his order, and he had to respond to an application for a temporary restraining order, it was his judgment that there was no medical justification. Now, the record is going to be very, very different later this month when the parties get together again. He is going to hear from doctors who are going to say that there is a medical justification for requiring admittive privileges. And if you think about it for a moment, the rationale isn’t hard to imagine. Even based upon– my understanding is that even based upon the figures that the ACLU presented to the judge, a woman undergoing an outpatient surgical abortion in Wisconsin is likely to be admitted to the hospital every 16 days. Now, clearly you can get somebody admitted to a hospital if something goes wrong. You can put them in an ambulance and send them to an emergency room. But the argument is that you need to do more than that. You need to be able to arrange for continuity of care. You need to have somebody who was involved in the care of that woman, be able to call ahead to the hospital, to be able to dictate orders, to be able to ensure that the proper care will be provided immediately rather than simply putting her in the emergency room and letting them sort it out once she gets there.

Frederica Freyberg:

Lester Pines, let me have you respond.

Lester Pines:

That statement is completely false. That is, a woman is not admitted to the hospital every 16 days for complications from an abortion. That’s just an inaccurate statement, number one. Number two, if the issue of continuity of care, the legislature could have adopted regulations or directed the Medical Exercising Board to adopt regulations specifying what continuity of care is supposed to be. Admitting privileges is nothing more than a mechanism of trying to keep doctors from being able to perform abortions. That is, no hospital wants to be no hospital wants to be picketed, no hospital wants to have its administrators threatened with violence or shot to death. Hospitals are going to be very reluctant in this circumstance to grant admitting privileges, and what the state has done is to turn over to private parties, that is hospitals, the determination as to whether or not a doctor is going to be able to perform abortions. And that’s what this is all about. This is not about continuity of care. If the state wanted to have continuity of care, that’s fine. If they wanted continuity of care for serious surgical procedures, they would have provided that all ambulatory care centers have doctors with admission privileges. They didn’t do that. In those circumstances where doctors were preforming surgery under general anesthetic they are not required to have admitting privileges. So this has nothing to do with continuity of care.

Frederica Freyberg:

What about that, Rick Esenberg, nothing to do with continuity of care?

Rick Esenberg:

Well, I don’t see how you can say that. I mean, the medical profession doesn’t have admitting privileges for no reason at all. Now, you may come to the conclusion, and I’m sure Lester will argue, that in this particular context admitting privileges aren’t necessary. But to say that they have nothing to do with the continuity of care–

Lester Pines:

They have nothing to do with continuity of care.

Rick Esenberg:

–I think, is a dramatic overstatement, because somebody who has admitting privileges at a hospital is able to follow up with his or her patient in a way with somebody who doesn’t have admitting privileges at that hospital, who cannot write orders at that hospital, who cannot themselves admit somebody to that hospital, is unable to do.

Lester Pines:

And that’s absolutely unnecessary.

Rick Esenberg:

This argument that this is delegating authority to another hospital has been– has been addressed by several circuit courts of appeals–

Frederica Freyberg:

Let me cut in.

Rick Esenberg:

who have rejected that argument.

Lester Pines:

But it’s absolutely– the idea that that that's– that the way that hospitals work in this day and age is that outpatient doctors then follow their follow their patients as inpatients is absolutely preposterous. That is not the way it works, and the people who authored this bill know very well that’s not the way it works. A person who has, for example, emergency needs and has a doctor who provides services then on an outpatient basis, who has an emergent issue, is told to go to the emergency room. You've probably experienced that. I’ve experienced that with family members. That’s the way it works. The doctor doesn’t rush down to the emergency room and treat the patient.

Frederica Freyberg:

Let me ask Rick Esenberg this. The judge also declared that this ban on abortion clinics whose doctors lack these admitting privileges constitutes a substantial obstacle to the women seeking those services. Now, for the authors of the law, presumably that obstacle is not a bad thing. But do you think this creating a so-called substantial obstacle can pass legal muster?

Rick Esenberg:

Well, it’s not– first of all, I mean, the question is, does it create a substantial obstacle, as a matter of fact?

Lester Pines:

Wouldn’t you think that closing–

Rick Esenberg:

We had a hearing on a TRO and basically, in which the judge only heard one side of the case. I want to see what the entire record shows when the state has an opportunity to put on their evidence. Beyond that, I think that there may be an interesting legal question here with respect to the standard that gets applied to this type of requirement. Is it going to be the undue burden analysis adopted by the plurality in Casey, or is it, given the fact that I think there is more medical difference of opinion here than Lester wants to admit, is it going to be the more lenient standard that the court seems to have employed in Casey versus rather, vs–

Frederica Freyberg:

We need to give Lester Pines, really, the final ten seconds.

Lester Pines:

Well, the standard that’s going to be applied is whether there’s an undue burden here. First of all, is there a medical necessity, and secondly, is there an undue burden? That’s what’s going to be applied on Wednesday and there will be a preliminary injunction issued.

Frederica Freyberg:

And we will be looking forward to that hearing. Lester Pines in Madison, Rick Esenberg in Milwaukee, thank you.

Rick Esenberg:

Thanks.

Lester Pines:

You’re welcome.

Frederica Freyberg:

The same federal judge who placed a hold on part of the new abortion law also took action on state Capitol rules this week, rules that the Department of Administration put into effect after the heated collective bargaining protests of 2011. Judge William Conley has temporarily barred the Capitol police from requiring permits for groups smaller than 20 people to protest at the Capitol building. That would include variations of groups like the one known as Solidarity Singers who have shown up at the Capitol every day since the collective bargaining bill was signed, including Tuesday when the federal court action was announced. DOA secretary, Mike Huebsch, said Wednesday he won’t appeal the preliminary ruling. Judge Conley will make a final ruling early next year.