The subject was Wisconsin's new law requiring doctors at abortion clinics to have access to hospitals within 30 miles, which has been temporarily blocked by the lower court.
At times appearing exasperated, Posner repeatedly interrupted [Wisconsin assistant attorney general Daniel] Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries....Lennington professed to have no idea why. One suspects that the reason is: Because it's only abortion that we disapprove of and therefore want to encumber. If that's the real answer, Lennington wouldn't want to say it, because it lays the groundwork for finding the law to be the kind of undue burden that violates privacy rights.
Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.Lennington didn't even know if there were records?! If you actually want to get away with imposing these burdens, you ought to build a foundation for showing that there are strong medical reasons for the new requirement. But then it would be less obvious that the law expresses opposition to abortion. I'm going to presume that the legislature wanted to flaunt its opposition to abortion — for political reasons — and the law is more of a gesture than a genuine health provision that can and should be upheld.
At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."
Part of the plan, perhaps, is a tempting invitation to the judges to strike it down. Can a judge resist? If not, the social conservatives will bray about "activist judges," and they'll overplay their hand, in all likelihood, and we'll be back in the throes of the "war on women" just in time for the next presidential election, which, of course, will be won by Hillary Clinton, who — through judicial appointments and federal statutory law and health-care regulations — will save The Right To Choose.