DEFENDANTS PRE-TRIAL BRIEF - The Wheeler Report · DEFENDANTS’ PRE-TRIAL BRIEF The United States...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

PLANNED PARENTHOOD OF

WISCONSIN, INC., et al.,

Plaintiffs,

v. Case No. 13-C-465

J.B. VAN HOLLEN, et al.,

Defendants.

DEFENDANTS’ PRE-TRIAL BRIEF

The United States Supreme Court has held that a State may regulate

abortions where it has a rational basis to act and the regulation that the

State enacts does not impose an undue burden on the exercise of a woman’s

right to an abortion. See Gonzales v. Carhart, 550 U.S. 124, 158 (2007).

Here, plaintiffs cannot establish that 2013 Wisconsin Act 37 (“Act 37”), which

requires physicians providing abortions to obtain admitting privileges at

hospitals within 30 miles of their clinics, runs afoul of that standard.

Plaintiffs’ challenge to Act 37 must be premised upon whether there is a

rational basis for the law. Defendants’ medical experts will demonstrate that

it is rational for Wisconsin to require local hospital admitting privileges. In

an effort to deflect such medical opinions, and to shift the focus away from

the applicable constitutional test, plaintiffs will try to show that local

Case: 3:13-cv-00465-wmc Document #: 185 Filed: 05/16/14 of 26

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admitting privileges are not “medically necessary.” That is not the legal

standard. This Court must determine whether Act 37 is rational and

whether it serves a legitimate interest. It is and it does.

Defendants will establish at trial that there is a rational basis for Act 37.

Act 37 will provide a more thorough evaluation mechanism of abortion

physician competency, promote and ensure better continuity of care for

abortion patients in emergency situations, enhance inter-physician

communication and optimize the transfer of patient information, and support

the ethical duty of care for the abortion providing physicians to prevent

patient abandonment. Act 37 will also provide an added layer of hospital

oversight for abortion physicians who must maintain admitting privileges.

Plaintiffs’ experts concede that continuity of care is an important element

when an abortion patient has complications following an abortion. And,

while abortion complication rates are relatively low, when those

complications occur they can be life-threatening.

The only remaining issue is whether the law imposes an undue burden on

a significant number of women seeking to obtain abortions. It does not.

Plaintiffs began this lawsuit asserting that it would be “impossible” for

their physicians to obtain local admitting privileges and that, therefore, the

Appleton Planned Parenthood of Wisconsin (“Planned Parenthood”) clinic and

the Milwaukee Affiliated Medical Services (“AMS”) clinic (where later term


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abortions take place) will have to shutter their doors. Plaintiffs do not have

facts to support such claims and have actually changed their theories. In

fact, the evidence presented at trial will show that Act 37 does not create an

undue burden on women seeking abortions. It will further show that—their

protestations aside—a sufficient number of Planned Parenthood physicians

now have admitting privileges in Milwaukee and Appleton,1 and there is no

justification to close the Appleton clinic. The evidence will also show that

AMS’s physicians were not diligent in their pursuit of admitting privileges in

Milwaukee. This will significantly limit the focus of the trial because the

arguments regarding the Appleton clinic are no longer relevant. Even given

AMS’s physicians’ failure to act diligently in its efforts to obtain admitting

privileges, the evidence at trial will not support the facial invalidation of

Act 37 because there was a lack of follow-up with respect to their limited

attempts to obtain admitting privileges.

Simply put, Act 37 will not create an undue burden on women seeking

abortions in Wisconsin because there will be approximately the same number

of physicians and AMS’s clinic is only in jeopardy due to their own failures.

There is, therefore, no justification to invalidate Act 37. While AMS is the

only clinic that performs later-term abortions, Planned Parenthood already

has another abortion clinic in Milwaukee that could train its physicians to

1Plaintiffs have never asserted that the Madison Planned Parenthood abortion

physicians do not have privileges.


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perform the relatively few later-term abortions currently handled by AMS.

These procedures are also performed in hospitals. Further, Planned

Parenthood could increase its hours to accommodate the abortions currently

provided by AMS. Therefore, there are no hardships and no burdens on

women seeking abortion in Wisconsin—bearing in mind that no women

claiming access to abortions in such circumstances are even plaintiffs in this

action.

In addition, the State has a legitimate reason for a state government to

respond to this public-health risk with a regulation such as Act 37. Act 37

was enacted to protect the health of the women undergoing abortions and to

ensure they receive the highest quality of medical care.

There are five legal claims in this matter: procedural due process, due

process—non-delegation (presently the subject of a pending summary

judgment motion), substantive due process—right to privacy, substantive due

process, and equal protection. Plaintiffs will not be able to meet their burden

of proof as to any of these claims.

FACTS

In addition to the supplemental proposed findings of fact that defendants

have simultaneously filed with the Court, the following relevant facts will be

brought to light in the trial of this matter.


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A. Abortions provided to women residing in Wisconsin.

Of the approximately 6,900 abortions performed last year in Wisconsin

(Reported Induced Abortions in Wisconsin, 2012),2 approximately 83% of the

women are from Milwaukee (and its surrounding counties including

Kenosha), Dane (and its surrounding counties), Brown, Outagamie, and

Winnebago counties.

Of the abortions performed at abortion clinics, evidence presented at trial

will show that approximately only 2% per year are “later-term” or post

18 weeks-6-day abortions. This is only about 50 “later-term” abortions per

year. The focus of this case on plaintiff AMS’s ability to continue to provide

later-term abortions, therefore, is based upon a tiny fraction of all abortions

annually performed in Wisconsin.

B. Abortion complications and hospitalization.

Post-abortion complications can be serious and life-threatening. The two

most common of the serious and life-threatening complications of an abortion

are infection and profuse post-abortion bleeding. Serious complications and

death resulting from abortion are underreported because (1) reporting is

generally voluntary, and (2) reporting usually only involves abortion

complications that occurred at an abortion facility, not complications that

develop later, after a woman leaves the facility. Act 37 protects the maternal

2See http://www.dhs.wisconsin.gov/publications/P4/p45360-12.pdf.


http://www.dhs.wisconsin.gov/publications/P4/p45360-12.pdf

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health of women seeking abortions by ensuring their continuity of care with

competent and qualified physicians who are subject to hospital credentialing

review and, as a result, ensures these vulnerable women’s safety and

prevents them from suffering abandonment by the abortion physician.

C. All but two physicians have obtained admitting privileges.

As noted above, almost all of plaintiff Planned Parenthood’s Milwaukee

and Appleton physicians have obtained admitting privileges so that it can

continue to operate all of its clinics, including the Appleton clinic that

Planned Parenthood had alleged would be forced to close. In fact, some of its

physicians even obtained privileges within 30 miles of both the Milwaukee

and Appleton abortion clinics. Thus, only one clinic—that run by plaintiff

AMS—will potentially be negatively impacted by Act 37. The evidence will

show that AMS’s physicians did not diligently attempt to comply with Act 37.

ARGUMENT

It is irrefutable that physicians who provide abortions can obtain

admitting privileges in Wisconsin. The remaining issues at trial, therefore,

are whether the State of Wisconsin had a rational basis to impose Act 37 and

whether Act 37 imposes an undue burden on the ability of women to obtain


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abortions in Wisconsin. As discussed below, plaintiffs will not otherwise be

able to meet their burdens with regard to either issue.3

I. Act 37 Is Rationally Related To A Legitimate State Interest.

The Court must presume that Act 37 is constitutional. See St. John’s

United Church of Christ v. City of Chicago, 502 F.3d 616, 637-38

(7th Cir. 2007). Accordingly, Act 37 must be upheld if it is rationally related

to Wisconsin’s legitimate interests.

Wisconsin has a legitimate interest in the maternal health of women

seeking abortions, Planned Parenthood of Se. Mo. v. Danforth, 428 U.S. 52,

80 (1976), and their subsequent care in the event of an emergency of

hospitalization. Whether a woman is rushed to the hospital emergency room,

or transferred through some other means, she deserves the best care

possible.4 Act 37 is a rational regulation aimed at improving care for abortion

patients who experience potentially life-threatening abortion complications.

3The rational basis and undue burden inquiries arise out of Counts III and IV of

plaintiff’s Complaint, which are based on substantive due process theories.

Defendants continue to maintain that plaintiffs lack statutory and constitutional

standing to assert the rights of their patients in Count III. Regardless, plaintiffs

will not meet their burden of proof as to either Count III or IV.

4As one of the plaintiff physicians in the case noted: “You can assign a finite risk of

complications to any procedure, and if you do enough of them, bad things are bound

to happen.” (Plaintiff Dr. Susan Pfleger, April 17, 2014, Deposition Transcript

at 159, lines 3-5).


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At trial, defendants will establish that Act 37’s admitting-privileges

requirement serves a legitimate state interest because it is “‘reasonably

directed to the preservation of maternal health.’” Planned Parenthood of

Se. Pa. v. Casey, 505 U.S. 833, 900 (1992) (quoting Danforth, 428 U.S. at 80).

Defendants’ witnesses will testify as to the medical benefits of admitting

privileges as they relate to the treatment of abortion complications.

The Supreme Court recognizes that “[w]here it has a rational basis to act,

and it does not impose an undue burden, the State may use its regulatory

power to bar certain procedures and substitute others, all in furtherance of

its legitimate interests in regulating the medical profession” including such

regulation regarding the provision of abortions. Gonzales, 550 U.S. at 158.

Wisconsin has done so here with Act 37.

Continuity of care is an important element to ensure a good outcome for

an abortion patient with complications. It is difficult to treat complications

or provide follow-up care after an abortion if the physician is no longer

around, cannot be reached, or does not try to contact the emergency

department treating physician. Hand-offs between out-patient and hospital

staff inherently carry with them a risk of lack of communication even in the

best of circumstances. Women—especially women who are in the vulnerable


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state5 of having opted to pursue an abortion—do not deserve to be abandoned

by their abortion provider who spends a total of 15 minutes to an hour6 with

her and then hands her a card with a telephone number to call if she

experiences any complications. When there is no accountability or follow-up

requirements—which admitting privileges both require and facilitate—this

lack of communication can prove fatal.

Act 37’s local admitting privileges requirement is aimed at increasing the

quality of health care for women seeking abortions.7 As Casey held, even if a

regulation “which serves a valid purpose, one not designed to strike at the

right [to abortion] itself, has the incidental effect of making it more difficult

or more expensive to procure an abortion [that] cannot be enough to

invalidate it.” 505 U.S. at 874. In other words, “the State has

legitimate interests . . . in protecting the health of the woman,” therefore if

Act 37 furthers that State interest, it should be upheld. Id. at 846.

See also Simopoulos v. Virginia, 462 U.S. 506, 511 (1983) (affirming and

5Gonzales, 550 U.S. at 159 (“Whether to have an abortion requires a difficult and

painful moral decision.”).

6Plaintiffs’ physicians will testify that this is the total amount of time they spend

with a woman during her abortion.

7An additional area of concern supporting the enactment of Act 37 is the growing

number of abortion physicians nationwide who have been found to have provided

egregious and/or substandard care to the women in their care. E.g., Dr. Kermit

Gosnell and the other physicians listed in the Appendix to the Concurrence, by

Judge Manion, dated December 20, 2013. Accordingly, Act 37 is further supported

by the increasing frequency of substandard care by abortion providers.


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quoting Roe v. Wade, 410 U.S. 113, 150 (1973), that “‘[t]he State has a

legitimate interest in seeing to it that abortion, like any other medical

procedure, is performed under circumstances that insure maximum safety for

the patient’”); Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 172

(4th Cir. 2000) (holding that a “valid purpose” was served by a regulation

requiring abortion clinics to be associated with a physician who has

admitting privileges at a local hospital).

This Court should not second-guess the Wisconsin Legislature’s decisions

on how best to protect the maternal health of its citizens because the

Supreme Court “has given state and federal legislatures wide discretion to

pass legislation in areas where there is medical and scientific uncertainty.”

Gonzales, 550 U.S. at 163. Considerations of marginal safety, including the

balance of risks, are within the legislative competence when the regulation is

rational and in pursuit of legitimate ends. When standard medical options

are available, mere inconvenience does not suffice to displace them; even if

some procedures have different risks than others, it does not follow that the

State is altogether barred from imposing reasonable regulations. Id. at 166.

Indeed, according to the Supreme Court, states have “considerable

discretion” to formulate licensing requirements to protect the health of

women seeking abortions and safeguard the integrity of the medical

profession. Simopoulos, 462 U.S. at 516 (“In view of its interest in protecting


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the health of its citizens, the State necessarily has considerable discretion in

determining standards for the licensing of medical facilities.”); Gonzales,

550 U.S. at 163 (“The Court has given state and federal legislatures wide

discretion in areas where there is medical and scientific uncertainty.”);

id. at 157 (“[t]here can be no doubt the government has an interest in

protecting the integrity and ethics of the medical profession”) (internal

quotation marks omitted). Such regulations are not even required to bear a

relationship to any obvious public health problem.

The Fifth Circuit recently addressed a similar regulation and held that,

not only was it constitutional, but that the “requirement that physicians

performing abortions have hospital admitting privileges helps to ensure that

credentialing of physicians beyond initial licensing and periodic license

renewal occurs.” Planned Parenthood of Greater Texas Surgical Health

Servs. v. Abbott, 734 F.3d 406, 411 (5th Cir. 2013); see also Planned

Parenthood of Greater Texas Surgical Health Servs. v. Abbott, ___ F.3d ___,

2014 WL 1257965, at *8 (“Applying the rational basis test correctly, we have

to conclude that the State acted within its prerogative to regulate the medical

profession by heeding these patient-centered concerns and requiring abortion

practitioners to obtain admitting privileges at a nearby hospital.”).


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Likewise, all other federal circuit courts of appeal that have considered

this issue have upheld similar admitting privileges requirements.8

Admission requirements are rationally related to the “state’s legitimate effort

to ensure that abortion is ‘as safe for the woman as normal childbirth at term

. . . [and] is performed by medically competent personnel under conditions

insuring maximum safety for the woman.’” Women’s Health Ctr. of W. Cnty.,

Inc. v. Webster, 871 F.2d 1377, 1382 (8th Cir. 1989) (quoting Connecticut v.

Menillo, 423 U.S. 9, 11 (1975)).

Defendants anticipate that plaintiffs will attempt to counter the fact that

Act 37 passes the rational basis test by presenting evidence from their

competing medical experts that Act 37 is not “medically necessary.” This is

insufficient because Wisconsin need not prove that Act 37 is medically

necessary. Mazurek v. Armstrong, 520 U.S. 968, 973 (1997). In fact, under

8In Women’s Health Center of West County v. Webster, 871 F.2d 1377

(8th Cir. 1989), the Eighth Circuit found “no difficulty in concluding that [the state’s

admitting privileges law] rationally relate[d] to the state’s legitimate interest in

ensuring that prompt backup care is available to patients who undergo abortions in

outpatient clinics.” Id. at 1381. In Greenville Women’s Clinic v. Commissioner,

317 F.3d 357, 363 (4th Cir. 2002), the Fourth Circuit upheld similar

admitting-privileges requirements under a rational basis test concluding that

“requirements of having admitting privileges at local hospitals and referral

arrangements with local experts are so obviously beneficial to patients . . . , that, on

a facial challenge, [the court could not] conclude that the statute denies the abortion

clinics due process.” See also Webster, 871 F.2d at 1381 (Missouri’s

admitting-privileges requirement “furthers important state health objectives”).

Accord Tuscon Woman’s Clinic v. Eden, 379 F.3d 531, 547 (9th Cir. 2004) (holding

that Arizona statute requiring only abortion doctors who performed a certain

number of abortions per month to obtain admitting privileges did not violate equal

protection because it was rationally related to achieving a legitimate end).


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the rational basis test, Act 37 “may be based on rational speculation

unsupported by evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc.,

508 U.S. 307, 315 (1993). This is a critical distinction.

Moreover, “there is no requirement that a state refrain from regulating

abortion facilities until a public-health problem manifests itself.” Greenville

Women’s Clinic, 222 F.3d at 169. Even measures which “may be helpful”

or “can be helpful” have been upheld in this context. Danforth, 428 U.S.

at 80-81. See also Abbott, 734 F.3d at 411 (the state need only offer a

“‘conceivable state of facts that could provide a rational basis’ for requiring

abortion physicians to have hospital admitting privileges’”) (footnote omitted;

quoting Beach Commc’ns, 508 U.S. at 313).

Defendants will show that many, if not most, of the other ambulatory

surgical centers (“ASC”) in Wisconsin (as in the nation) are already staffed by

physicians who have admitting privileges at local hospitals. For those ASC’s

associated with hospitals, the physicians are likely all on staff with that

hospital. For those ASC’s not so associated, they still have physicians with

such admitting privileges. Significantly, this is not a real issue in this case

because there is no legal requirement that a Legislature must uniformly

regulate medical procedures. A state “may select one phase of one field and


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apply a remedy there, neglecting the others.” Williamson v. Lee Optical of

Okla. Inc., 348 U.S. 483, 489 (1955). Regardless, defendants will establish

that most of the physicians at other ASC (non-abortion facilities) are either

already associated with a hospital or have admitting privileges with a

hospital. This suggests that abortion clinics with physicians who lack local

admitting privileges are the exception, not the rule.

Defendants will further present testimony and evidence that will reflect

that members of the medical community see benefits in requiring local

hospital admitting privileges. In addition, the neutral medical expert

outlines at least four benefits for physicians having admitting privileges, the

first of which is “to ensure that the practicing physicians are appropriately

qualified, trained and competent to practice in a specified area of medicine or

surgery.” (Neutral Expert Report at 3). The neutral medical expert further

opines that “[p]hysician to physician communication is one of the most

important requirements for optimal handling of a complication arising from a

procedure.” Id. at 4. Accordingly, defendants will be able to establish that

Act 37 is reasonably related to Wisconsin’s rational basis for the

law: protecting the health of Wisconsin women seeking abortions. Plaintiffs’

counter-evidence does not negate this.

Moreover, any suggestion that the geographic limitation in Act 37 is a

further basis upon which the law could be invalidated is wrong. When


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considering an identical 30-mile limit, the Fifth Circuit noted that “the State

is not required under rational basis review to choose the least restrictive

means to achieve a legitimate goal.” Abbott, 2014 WL 1257965, at *9.

In affirming the regulation, the Fifth Circuit further held that “the

geographic restriction does not affect [the court’s] conclusion that the

admitting-privileges requirement, as enacted, has a rational basis.” Id.

At trial, it is plaintiffs’ burden to prove, under the rational basis test,

that Act 37 is irrational. RJB Props., Inc. v. Bd. of Educ. of Chicago,

468 F.3d 1005, 1010 (7th Cir. 2006). And, defendants “‘may defend the

rationality of [the State’s] action on any ground it can muster, not just the

one articulated at the time of decision.’” Id. (quoting Smith v. City of

Chicago, 457 F.3d 643, 652 (7th Cir. 2006)). The Seventh Circuit has

even stated that there is “never a role for evidentiary proceedings” under

rational basis review. See Nat’l Paint & Coatings Ass’n v. City of Chicago,

45 F.3d 1124, 1127 (7th Cir. 1995); see also Abbott, 2014 WL 1257965, at *10.

If Act 37 is rational under any reasoning, it passes constitutional muster,

period.

The question for this Court is not how rational the medical grounds for a

regulation are, but rather whether they are rational. See Casey, 505 U.S.

at 876. If a rational basis for the law exists—such as protecting the health of

women having abortions in Wisconsin—Act 37 must be upheld so long as it


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does not impose an “undue burden” on the right to abortion of a significant

number of women.

II. Act 37 Does Not Impose An Undue Burden On The Right To

Abortion.

The facts have changed since the beginning of this case. Plaintiffs can no

longer demonstrate that Act 37 will cause a constitutionally significant

decrease in abortion availability in Wisconsin. With the exception of plaintiff

AMS, almost all of plaintiffs’ physicians obtained local hospital admitting

privileges. Act 37, therefore, will not cause an undue burden on the right to

an abortion of a significant number of women in Wisconsin.

A state abortion regulation is unconstitutional only if it places an undue

burden on the exercise of a woman’s right to abortion. “An undue burden

exists, and therefore a provision of law is invalid, if its purpose or effect is to

place substantial obstacles in the path of a woman seeking an abortion before

the fetus attains viability.” Casey, 505 U.S. at 878. Casey explained that an

abortion law is not rendered unconstitutional merely because it operates to

make it more difficult or more expensive to procure an abortion. Id. at 874.

Moreover, a woman’s right to an abortion is not the right “to decide whether

to have an abortion without interference from the State.” Id. at 875 (internal

quotation marks omitted).

In Karlin v. Foust, 188 F.3d 446, 481 (7th Cir. 1999), the Seventh Circuit

explained that a burden is not unconstitutional simply because it makes


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abortions a little more difficult or expensive to procure. The court held that

“inconvenience, even severe inconvenience, is not an undue burden.” Id.

The issue before the Court, therefore, is whether Act 37 will prevent “a

significant number of women” from obtaining abortions, not whether it might

make abortions more difficult to obtain. Id. at 481-82. The appropriate focus

is on the “practical impact of the challenged regulation and whether it will

have the likely effect of preventing a significant number of women for whom

the regulation is relevant from obtaining abortions.” Id. at 481 (emphasis

added).

Plaintiffs make a single claim with regard to undue burden: that Act 37

will reduce the availability of abortions in Wisconsin because abortion

physicians cannot obtain admitting privileges at local hospitals, and, as a

result, abortion capacity will be reduced (due to a closure of two clinics and

reduced capacity at a third). In other words, plaintiffs suggest that because

capacity is reduced, women will be forced to drive farther and wait longer to

obtain an abortion.

Even if true, this merely creates an inconvenience and not an undue

burden that prevents a significant number of women from obtaining an

abortion. See Karlin, 188 F.3d at 481. Here, the claimed burden is

significantly reduced because the Appleton Planned Parenthood clinic will

not close and the AMS clinic is only in jeopardy of closing due to its


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physicians’ less than diligent efforts to comply with Act 37. Planned

Parenthood’s Milwaukee and Appleton physicians were able to obtain

admitting privileges in compliance with Act 37, despite their initial

protestations otherwise.

The cases addressing abortion clinic closures cited by plaintiffs do not rest

solely on the number of clinics closed, or the amount of abortion services

made unavailable, but on the practical effect on women seeking abortions.

Courts that have upheld laws limiting the availability of abortion providers

have emphasized that women could still obtain abortions within a reasonable

distance.9 Even when Act 37 goes into effect, Wisconsin women in all parts of

the state will have no difficulty obtaining an abortion even if the new location

is marginally less convenient. This is not tantamount to an undue burden.

Plaintiffs’ “undue burden” claim springs from their assertion that none of

their doctors can get admitting privileges at a local hospital. This has proven

to be untrue. As defendants argued at the preliminary injunction hearing,

there was no reason to believe that the named plaintiff physicians would not

9See, e.g., Women’s Med. Prof. Corp. v. Baird, 438 F.3d 595, 605 (6th Cir. 2006)

(finding no undue burden where a law would cause a Dayton, Ohio, abortion clinic

to close, but abortion clinics remained in Cincinnati, Columbus, Cleveland, and

Akron, thus allowing potential patients to obtain abortions in state “within a

reasonable distance [45–to–55 miles] from the Dayton clinic”); Greenville Women’s

Clinic, 222 F.3d at 165 (finding no undue burden where “[t]he record contain[ed]

evidence from several abortion providers, only one of which would be adversely

affected in any significant way in providing abortion services,” and the women near

the one clinic that would close could obtain abortion services at an in-state clinic

70 miles away).


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be able to obtain the necessary admitting privileges—as indeed has

happened. Thus, the Appleton Planned Parenthood clinic will not close, nor

will the Milwaukee Planned Parenthood clinic. Therefore, plaintiffs’

contention that abortions will be unavailable north of Madison is

demonstrably wrong. Much of several of plaintiffs’ expert witness reports

are, thus, also rendered moot or irrelevant to this case. Accordingly, no

burdens, undue or otherwise, flow from Act 37 with respect to Planned

Parenthood.

With respect to AMS, its two physicians did not diligently attempt to

comply with Act 37. AMS’s medical director, who performs the vast majority

of abortions at the clinic, applied to only one local hospital for admitting

privileges and did not investigate applying to other hospitals within thirty

miles of the clinic. Even if the AMS clinic chooses to close because its two

physicians were not able to obtain admitting privileges, it would be due to

their choice, not because of Act 37. AMS chose not to pursue admitting

privileges as Planned Parenthood has done, and its choice not to adapt its

business model to Act 37 would be the cause of any closing.

Moreover, even if AMS chooses to close its doors, that would not cause an

undue burden on a significant number of women in Wisconsin. AMS happens

to be the only clinic in Wisconsin that performs late-term abortions past

19 weeks, but Planned Parenthood could perform the small number of these


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procedures that AMS performs each year. Moreover, hospitals will perform

them in the case of lethal fetal anomalies and dangers to the life or health of

the mother. If AMS closes, there is nothing to prevent Planned Parenthood

from growing to increase its market share and satisfying any increased

demand caused by the closure. Further, there is nothing to prevent women

from traveling across the state lines to Illinois abortion clinics (or even those

in other neighboring states). That will not change whatsoever.

Finally, plaintiffs’ lawsuit is a facial attack on the constitutionality of a

statute. In Gonzales, the Supreme Court held that a facial challenge to an

abortion law may proceed only when the plaintiffs have “demonstrated that

the [law] would be unconstitutional in a large fraction of relevant cases.”

550 U.S. at 167-68 (citing Casey, 505 U.S. at 895) (emphasis added). The

trial evidence will show that there is no “large fraction” of abortion-seeking

women in Wisconsin that will face an undue burden to obtaining an abortion.

Instead, abortion availability in Wisconsin is still robust even after Act 37 in

light of the fact that almost all of plaintiffs’ physicians were able to obtain

local hospital admitting privileges.

Therefore, plaintiffs will not be able to meet their burden to establish that

a significant number of women in Wisconsin will be burdened, much less

unduly burdened, by Act 37.


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III. Act 27 Does Not Deprive Plaintiffs Of Any Constitutional

Rights.

Plaintiffs’ five claims in the Complaint all arise from constitutional

violation theories. One claim, non-delegation (Count II), has already been

fully briefed on summary judgment. Defendants’ summary judgment

arguments are incorporated herein. (See Dkt. #149).

Plaintiffs’ substantive due process claims (in Counts III and IV) are

addressed in the Argument (at Sections I – II), supra. The final two claims

are addressed below.

A. Procedural due process.

The procedural due process cause of action (Count I), cannot stand.

Plaintiffs have no protected property or liberty interest at stake here,

therefore, there is no basis upon which they were entitled to due process.

There must first be a determination that there is a deprivation of a

protected interest in “property” or “liberty.” Am. Mfr. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 59 (1999); Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 569 (1972). Without such a protected interest at stake, the

matter will never rise to the level of a due process violation. In the present

case, plaintiffs’ liberty is not at stake. See Greenville Women’s Clinic,

222 F.3d at 173 (there is no liberty interest in performing abortions free from

government regulations). “No authority exists to support a conclusion that

abortion clinics or abortion providers have a fundamental liberty interest in


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performing abortions free from governmental regulation.” Greenville

Women’s Clinic, 222 F.3d at 173. The sole question remaining is whether

plaintiffs have a protected property interest.

A constitutionally protected property interest is one in which “a person

clearly must have more than an abstract need or desire for it. He must have

more than a unilateral expectation of it. He must, instead, have a legitimate

claim of entitlement to it.” Roth, 408 U.S. at 577 (discussing whether a party

has a property interest in receiving a welfare benefit). In other words,

“property is what is securely and durably yours under state (or . . . federal)

law, as distinct from what you hold subject to so many conditions as to make

your interest meager, transitory, or uncertain.” Reed v. Vill. of Shorewood,

704 F.2d 943, 948 (7th Cir. 1983) (discussing whether a liquor license is

“property”). A mere hope or expectancy, therefore, is not enough to invoke

the guarantees of procedural due process. Swartz v. Scruton, 964 F.2d 607,

610 (7th Cir. 1992).

“[T]here is no right to practice medicine which is not subordinate to the

police power of the states.” Lambert v. Yellowley, 272 U.S. 581, 596 (1926).

Moreover, even when an individual has a property interest in his or her

chosen profession, they do not have a due process right to practice that

profession free from government regulations. See Abcarian v. McDonald,

617 F.3d 931, 942 (7th Cir. 2010).


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Plaintiffs have failed to allege that there is anything preventing them

(both plaintiff physicians and clinics) from being able to change their

business practices to meet the criteria under the new law and comply with

Act 37. There is nothing inherent in any of these abortion clinics to prevent

them from hiring physicians who have (or are eligible) for admitting

privileges in local hospitals. Plaintiffs cannot show that they will be unable

to practice their professions; in fact, Planned Parenthood’s physicians have

now obtained admitting privileges for Milwaukee and Appleton. Thus, it is

not a due process violation for the State to require these clinics (and their

physicians) to change their business practices—like so many other businesses

must do in response to state regulations—to comply with a new regulation.

Plaintiffs will not be able to meet their burden as to their procedural due

process claim.

B. Equal protection.

Finally, plaintiffs’ equal protection claim in Count V is equally without

merit. “[T]here is no requirement that a state refrain from regulating

abortion facilities until a public-health problem manifests itself.” Greenville

Women’s Clinic, 222 F.3d at 169. There is no legal requirement that a

Legislature must uniformly regulate medical procedures. See Gonzales,

550 U.S. at 163 (“The law need not give abortion doctors unfettered choice in


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the course of their medical practice, nor should it elevate their status above

other physicians in the medical community.”).

The Fifth Circuit also addressed—and promptly dismissed—this equal

protection argument:

Van Hollen also sees an equal protection problem lurking about the

Wisconsin legislature’s choice not to require that doctors who perform

outpatient services other than abortions also have admitting

privileges. Van Hollen, 738 F.3d at 790. The appellate court posits

that Wisconsin’s abortion providers have been singled out by the

state’s legislature despite the fact that plaintiffs submitted no evidence

that other outpatient doctors are actually treated differently under

Wisconsin law. Id. at 802 (Manion, J., concurring). There is no

requirement, moreover, that a state legislature address all surgical

procedures if it chooses to address one. States “may select one phase of

one field and apply a remedy there, neglecting the others.”

Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489, 75 S.Ct. 461,

99 L.Ed. 563 (1955).

Abbott, 2014 WL 1257965, at *10.

In this case, given the state of other ASC’s and its interest in protecting

the health of women undergoing abortions, plaintiffs will not be able to prove

that the Wisconsin Legislature was not acting rationally when it enacted

Act 37.

CONCLUSION

The Constitution does not preclude the government from trying to make

abortion as safe and humane as it can possibly be. Act 37 a common-sense,

practical regulation aimed at protecting maternal health.

Furthermore, Act 37 is rationally related to several other legitimate state

interests. It does not truly burden women seeking abortions, much less


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burden a significant number of such women—and not merely because most of

plaintiffs’ physicians have now been able to comply and have obtained

admitting privileges. Act 37 does not place a substantial obstacle in the path

of a woman seeking an abortion in Wisconsin. Act 37, instead, serves a valid

purpose ensuring continuity of care for women having abortions who

experience serious emergency complications and that abortion physicians are

competent and qualified. It will also create a level of an additional level of

accountability for abortion physicians, who will be subject to credentialing

review by the hospitals at which they maintain admitting privileges.

State Legislatures may regulate abortions to ensure the safety and health

of women seeking abortions as long as there is no undue burden on a

significant number of women. Act 37 creates no such burden because

plaintiffs’ physicians were able to obtain abortion privileges where they

attempted in good faith to obtain them. Plaintiffs’ concerns about decreased

abortion availability after Act 37 are unfounded.


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For the reasons argued in this brief, and for those argued and proven at

trial, the Court should grant judgment to defendants and find that Act 37 is

constitutional.

Dated this 16th day of May, 2014.

J.B. VAN HOLLEN

Attorney General

s/Maria S. Lazar

MARIA S. LAZAR

Assistant Attorney General

State Bar #1017150

CLAYTON P. KAWSKI


State Bar #1066228

BRIAN P. KEENAN


State Bar #1056525

Attorneys for Defendants

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 267-3519 (Lazar)

(608) 266-7477 (Kawski)

(608) 266-0020 (Keenen)

(608) 267-2223 (Fax)

[email protected]

[email protected]

[email protected]


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