By Dave Andrusko
Judge Richard Posner
I was not there in Chicago, so I will have to go by media accounts of what a three-judge panel did to Assistant Attorney General Brian Keenan. Keenan was defending Wisconsin’s law requiring abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic.
It was evidently not pretty.
Here’s the lead from the Milwaukee Journal Sentinel. Patrick Marley began
The presiding judge on a federal appeals panel [Judge Richard Posner] Thursday ripped into Wisconsin officials for a law — partly blocked by court order — that he said was designed to shut down abortion clinics, along the way singling out Gov. Scott Walker.
It goes downhill from there.
The response was not a surprise. Back in December 2013, at an early stage of litigation, the panel unanimously upheld a temporary block on Act 37.
Slightly surprising is how personal Judge Posner was in his comments about Gov. Walker.
“The appropriate role of a judge is to make decisions based on the rule of law, rather than to insert inflammatory political commentary,” spokeswoman Laurel Patrick said in an email to Marley.
Wisconsin Attorney General Brad Schimel
After Thursday’s hearing Wisconsin Attorney General Brad Schimel told reporters not to necessarily read too much into the questions and that the Supreme Court could end up hearing the case. (Schimel was in Chicago for a National Association of Attorneys General meeting in Chicago but stepped away to observe the arguments.)
“If the court here strikes down Wisconsin’s statute, there would be a split between the 5th Circuit and the 7th Circuit, which could prompt the Supreme Court to take the case up,” Schimel said. “There’s an expectation that the U.S. Supreme Court at some point is going to take on this issue.”
The allusion to the 5th Circuit is to the decision it rendered in June upholding, among other things, the admitting privileges requirement.
Act 37 became law in June 2013. The admitting privileges provision was challenged in federal court by Planned Parenthood of Wisconsin, Affiliated Medical Services, and the ACLU of Wisconsin the following month.
The law also provided that women seeking abortions obtain an ultrasound. That provision was never challenged in court and remains in effect.
“The state’s two abortion providers, Planned Parenthood of Wisconsin and Affiliated Medical Services, challenged the law, contending it would force Affiliated’s clinic in Milwaukee to close because doctors couldn’t get admitting privileges,” reported Marley.
The abortion clinics argued that if that happened, the state’s other three abortion clinics “wouldn’t be able to absorb Affiliated’s case loads.” Those clinics, Marley added, “all run by Planned Parenthood, are in Milwaukee, Madison and Appleton.”
U.S. District Judge William Conley blocked the law almost immediately after it passed and then last March struck it down as unconstitutional.
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