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.
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74 comments:
Lawyers are supposed to be smart, and Posner smarter than the average lawyer. This law had obvious intent. Why do you approve Posner's faking stupidity?
Did none of the briefs mention the crimes of Kermit Gosner?
Preventive law, like preventive medicine.
Should anybody trust the 1/300 rate of complications claim? Who would generate those numbers except doctors who might have a financial incentive to underreport complications?
It seems reasonable enough. But I don't imagine Dr. Gosnell going out of his way to report on his own poor record.
Also, I wonder if the 1/300 figure is high or low relative to other surgical procedures. Outpatient procedures, in particular. Wouldn't that matter? Further, wouldn't it matter if the sheer volume of abortions led to a greater number even if a low percentage?
The impression I get from the GOP is that they don't want so much to reduce abortions but to get political mileage from opposing abortions. So it's fine if they have their laws defeated in the legislature or in the courts--they still get to wave the flag come campaign time, and point out that the Democrats stopped them or appointed the judges who stopped them.
The Progressive War on Women continues.
Whatever happened to the presumption of COnstitutionality and the deference to the state in determining propriety of legal regulation of health and safety? Oh, wiat, I remember now, that only applies to laws passed by Democrat legislatures like affirmative action and pot legalization. The federal courts are merely a one way ratchet for the left wing.
The federal courts are merely a one way ratchet for the left wing.
You have no idea who Posner is do you? Calling him a "ratchet for the left wing" is patently absurd.
Posner is a self-described "cat person" per the venerable Wikipedia. Of course, that could be a plant by cat activists.
Seems to me this is heading to SCOTUS, as the 5th has already ruled to allow an almost identical law from Texas to be implemented, and even commented it was significantly likely to be found Constitutional in refusing to allow a stay from a lower court to remain in effect.
Given the subsequent strongly worded 5-4 split by SCOTUS to uphold the 5th's ruling by not taking action against it, when the inevitable circuit split occurs and the case makes it to the SCOTUS docket, why should anyone expect anything other than a 5-4 ruling upholding such laws? (unless of course a change in the makeup of the court occurs before they can rule on it)
"This law had obvious intent."
If so, why wouldn't the govt's lawyer say exactly what it was?
I haven't read the argument transcript and the news report may be skewed, but it sounds like, when probed, he couldn't put it into words. If it's so obvious, why wouldn't he say it. My presumption is: The truth would support the argument against the law.
Posner wasn't "faking stupidity." He was asking questions, questions that translate into the statement: I suspect this law fails the undue burden test. He was giving the govt's lawyer an opportunity to deflect that suspicion. The lawyer couldn't do it. Posner may have been tormenting the man, but too bad! The govt is imposing itself into people's private lives and into the doctor-patient relationship. It had better have decent and articulable reasons for that. If the govt's lawyer can't say what they are, it's not an occasion to criticize the judge. Oh, maybe criticize him a bit for sadism and enjoying it too much. But it's the state government and the state's lawyer who deserve criticism here.
"The impression I get from the GOP is that they don't want so much to reduce abortions but to get political mileage from opposing abortions."
Of course, I agree with you and have said this many times on this blog.
This new access law could provide a opportunity for trying once again to overrule "Roe" (i.e. Casey), and it would be interesting to see what would happen if the politicos who say that's what they want actually get it.
Political disaster for them, I'm almost sure. They would not handle the newfound power well at all.
Abortion has definite risks and a doctor who has no hospital admitting privileges cannot treat the known serious consequences of abortion which are statistically certain to happen. Why is that OK?
Surgical abortion risks
Short-term complications
- About 1 in 10 women undergoing elective abortion suffers immediate complications, of which one-fifth are considered life-threatening.
- Common major complications are - infection, excessive bleeding, embolism, anesthesia complications, convulsions, hemorrhage, cervical injury, endotoxic shock and ripping or perforation of the uterus.
- Minor complications include - infection, bleeding, fever, second-degree burns, vomiting and chronic abdominal pain.
I guess I should've read the comments before I posted something that basically echoed Althouse's 8:34 comment.
Why would the briefs mention Kermit Gosner, btw? Has he ever/Did he ever practice medicine (if that's what you want to call it) in Wisconsin?
@MadMan,
I don't know if it would have been wise for a Wisconsin lawyer to mention a Pennsylvania doctor whose actions made for a shocking example of a worst-case scenario. After all, the law won't cover doctors in PA.
I also have strong reason to suspect that if the news reporter wanted abortion to be safe for the pregnant woman, the news reporters would mention Gosnell's name every time abortion comes up.
You know, the "safe" part of "safe, legal and rare" that former-President Clinton talked about.
Interesting comment later in the news article:
The judges asked Planned Parenthood attorney Carrie Flaxman if she knew how many abortion clinic doctors would be hurt by the legislation. She said she didn't have a number. She said doctors she knows who applied for admitting privileges still haven't received final word — and she said one application was rejected.
So, an unknown number of doctors might be harmed, while State law tries to reduce a 0.3%-chance-problem into a non-problem.
Or, is @wildswan right? Is there a 20%-chance-of-a-problem that has been swept under the rug?
After all, the law won't cover doctors in PA.
More to the point, was Gosnell arrested and tried and convicted for something covered under this new law?
You know, the legal part of safe, legal and rare.
Because that's what a lawyer and judge will be arguing about.
Why do you need new laws to deal with the Kermit Gosnells of this world?
Enforce the existing laws.
Note how that's like what the NRA says about gun laws. Why do you need new laws when you're not enforcing the old laws? The old laws address the problem that is being used to argue for new laws.
We need to recognize that kind of political activity when it happens and recognize it across the board.
Let's hold government actors to consistency and principle.
This is high-school level civics.
My own comments are making me sad… that I should have to spell things like this out.
Are we capable of self-governance? Do we deserve democracy anymore?
Aboriri is a deponent verb (passive in form, active in meaning).
It's the suicidal social conservatives, as to politics.
We need new laws because that's what legislators do -- they dream up ideas that their dues-paying constituents would feel good about, and they craft legislation to address them. It doesn't matter that the new laws are overlapping past statutes. Constituents expect results! And by constituents I mean professional lobbyists who are doling out the dinero.
A human life before it leaves its mother's womb is incapable of defending its unalienable right to life. Each human life which is subject to the jurisdiction of The Constitution is granted equal rights to be enforced by the state. A human life without a voice cannot be denied this equal protection. Elective abortion is a violation of our unalienable right to life.
@Ann,
you may be right about the enforcement of current law.
Or maybe the supporters of abortion have managed to wrangle loopholes into law/practice such that there is no controlling legal authority to force them to operate under most health-care laws.
Which is the case?
What is the best remedy?
What remedy is politically possible?
Your own comments are making you sad. Two plus two equals four. This should be understood and not a required stipulation.
It seems reasonable to me that you would put special restrictions on people who are in the business of killing.
It seems clear that the WI Attorney General walked into this hearing knowing that the law is going to get thrown out.
One would think that this same point could be seen before passing the bill and focusing the Legislature's time on something pointless.
It's a shame that the Governor did not veto this and avoid all the costs associated with defending a law that will only be tossed out.
It's not very fiscally responsibile to piss away money on lawsuits you know you will lose.
This actually points to a serious problem with Conservative ideology; do Conservatives believe we should be able to live our lives generally unfettered by government regulation or not? Do they realize that this provides an opening for hospitals to lobby for, and get, restrictions on anything medical related? Republicans are no more immune to the laws of unintended consequence than Democrats.
So are surgicenters not required to have physicians with admitting privileges? There's a national group that certifies them, and they require admitting privileges.
Would you go to a doctor for outpatient surgery who did NOT have admitting privileges at a nearby hospital?
How many outpatient surgical centers in WI don't have privileges?
Could the problem be that, unlike other specialties, abortionists refuse to self-police? And that they mislead patients about whether abortion is actually a surgery and what risks it carries?
It's not very fiscally responsible to piss away money on lawsuits you know you will lose.
But the lobbyists and fund-raisers can now trumpet this bill's passage. If only those damn judges hadn't gotten in the way.
It's win-win, Scooby!
"... 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 [Kill]."
There. Fixed.
Having clarified that, Althouse's observations seem correct. Is the AG, or the Asst., a Democrat?
Posner's statistics seem absurdly low, but what's the difference if the AG can't counter. Malpractice.
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.
Under the circumstances, I'd have to agree. Nevertheless I support the law and will do so until someone can prove to me that a woman hemorraging from an abortion gone wrong can get emergency medical services in a timely fashion whether or not the abortionist has admitting privileges. One dead woman due to a botched abortion is one too many.
This is high-school level civics.
My own comments are making me sad… that I should have to spell things like this out.
Are we capable of self-governance? Do we deserve democracy anymore?
Judging from my kids' education in the early 2000s, high school civics has essentially disappeared since you and I were in high school back in the 1960s. Do we deserve democracy? I don't know what else we should do for a govenment. The parliamentary systems of Europe don't look to be any better. Shall we revert to monarchy? The Bushes versus the Clintons in a new War of the Roses?
Blogger Deirdre Mundy said...
"So are surgicenters not required to have physicians with admitting privileges? There's a national group that certifies them, and they require admitting privileges....Could the problem be that, unlike other specialties, abortionists refuse to self-police? And that they mislead patients about whether abortion is actually a surgery and what risks it carries?"
Give the lady a gold star. Traditionally doctors received their peer review at the local hospital where they had admitting privileges. Probably abortion clinics have a serious problem finding well qualified physicians. It is difficult to imagine a physician attending medical school and possibly a OB-GYN residence with the career goal of destroying fetuses for the rest of his/her life.
Yep. Most OBs like babies. And they see a dead baby as a failure, not a success. And they've done residencies around micro-preemies. So....your typical abortionist? Probably not skilled in complications of the girly parts.
Is the AG, or the Asst., a Democrat?
Assuming this is WI, no.
J B van Hollen is a (R)
(I know, I know, he's probably a RINO)!!
Doing a quick look-up, it looks like most other outpatient facilities and doctors working in them are required to meet fairly high standards.
For example: http://www.surgicalreview.org/coemig/requirements/
Again, it's a matter of self-policing and accreditation that abortion clinics appear not to follow.
What data was Posner citing?
Sort of important no?
I suspect he's citing a brief which is likely a horrible assumption of data compiled by the Guttmacher Institute, Planned Parenthood's research foundation.
I can't offer any insight into why the State's attorney was unprepared but some possible answers are:
1) An abortion is more invasive procedure and complications, even if rare, are more severe than, for example, a vasectomy. Therefor it is legitimately subjected to greater oversight and regulation.
2) The same reason that, though we have distracted driving laws, we have additional laws against texting while driving, though not against playing games on that same phone.
3) Who says we *won't* get to those other areas?
Yes AA, we have a democracy. And we're getting it good and hard.
Do we deserve democracy anymore?
Democracy is giving us what we deserve.
I suppose the alternative would be no regulation for ANY Medical practices... since Abortionists want to be exempt.
We could just get rid of state medical boards and trust research and word of mouth to lead consumers to the good doctors and away from the incompetent ones....
But the same people who want no oversight of abortion clinics seem to want a lot of regulations for... Catholic Hospitals, for instance....
Let's be fair. Regulate EVERYTHING to the same degree, or NOTHING. No carve outs for our special political causes.
"(I know, I know, he's probably a RINO)!!"
Conservatives are the new RINOs.
.3% means 24 women a year in Wisconsin have a major complication from abortion. Work out the figures.
The Guttmacher Institute says there are about 8,000 abortions a year in Wisconsin. If there's .3% chance of serious complications and there are 8,000 abortions a year in Wisconsin then 24 women a year have a serious complication. Seventy percent of all abortions in Wisconsin are at abortion clinics.(Guttmacher Institute) 70% x 24 = 16. Sixteen women a year experience a major complication from and the doctor who caused is not required to have admitting privileges at a hospital. Speaking of a war on women!
Why was the Wisconsin lawyer such a wimp? because Scott Walker is selling out the prolifers. He isn't trying on abortion because he has national ambitions. This has happened so many times. Once Jesse Jackson talked about "black genocide." Then he got national ambitions. The same with Walker.
But as I always say: the African-American birthrate has fallen below replacement level since 2006 due to overuse of contraception and abortion. The group is being wiped out. What liberal will speak for them? Not one. And not Walker either. I can see it.
Professor, under what theory of consitutional law does under inclusiveness in a statute now equal unconstitutional?
The right answer is that they started with abortion because that's where they wanted to start. The only question for a reviewing court is whether there is a rational basis for this health and safety regulation.
They are simply protecting people (maybe only a few people, but that is not properly part of the analysis) who might be injured or killed, a la Dr. Gosnell's patients.
Judge Posner seems to have become some caricature of an appellate court judge, asking mean and dumb questions to get himself in the news.
OK, the law is underinclusive and left wing abortionists don't like it. That should not be near enough to get it overturned, as there is nothing in the Constitution that allows federal judges to overturn laws based on underinclusiveness and/or left wingers don't like it bases.
So Althouse has the audacity to suggest that the GOP pols (like the liberals who oppose smoking but who want the tax revenue) are disingenuous in attempting to employ the lessons learned from liberals by approaching reversal of Roe v Wade through baby steps.
Ann, the people I know who oppose abortion are "all in" because killing babies is wrong. It takes a liberal mentality to suspect "gamesmanship" because progressives themselves are naturally disingenuous.
Let me see if I have this right ... you want to have boxes of records of women perishing from butchered abortions before you are willing to regulate the clinics performing the butchery?
Is that right?
In other words, in cases of medical care, i.e. great physical damage and distress, you need boxes of records before you do the right thing?
Is that right?
The govt is imposing itself into people's private lives and into the doctor-patient relationship. It had better have decent and articulable reasons for that.
You're kidding right?
Or is it only conservatives who are not allowed to impose itself into people's lives and the doctor-patient relationship?
They would not handle the newfound power well at all.
Except it wouldn't be a new power. It would be a return to the status quo before the travesty that is Roe V Wade.
Do we deserve democracy anymore?
God I hope not.
Bring back the republic.
Do the abortion clinics maintain records of women who had complications? do they maintain records about women who were transferred by ambulance to hospitals for treatment?
Healthy People 2020 which is the regime's public health plan includes a goal of increasing contraceptive use. Which liberals will think is OK. But suppose the 2020 Healthy People goal was to decrease contraception / abortion among African-Americans because their disproportionate use of birth control is wiping out the group. Would that be government intrusion according to liberals? Yes, we all know it would be considered intrusion and there would be holding up of hands and gasps of horror. And when the African-Americans going now, are gone... will liberals take the blame?
Peter K There are records kept by abortion clinics and the Guttmacher Institute uses these records for its statistics. That where the .3% number comes from. But those records are not accurate or perhaps we want to say that the records are based on assumptions that eliminate many complications from the record, even including ambulance transfers.
PeterK-- based on conversations with Docs who workmin inner city ERs and see a lot of botched abortion patients:
The complications usually happen after a woman has left the clinic--they don't keep them long after surgery. So she shows up at the ER alone. She has no access to the records of the Abortion. The clinic doesn't respond to records requests. So she doesn't get listed in the clinic's records at all, and she doesn't necessarily get listed as a botched abortion.
Meanwhile, ER docs are flying blind-- no idea what meds she's been given, how the procedure went, or anything.
Abortionists don't do follow-up. The reason they have trouble getting privileges is because the docs who have to clean up their messes really, really despise them and their lack of concern for the patient.
But again, abortionists only prey on the poor and unconnected. Women with connections aren't showing up in the dirty clinics. They know which doctor to see to have the procedure done in a hospital as a 'medically necessary' abortion. Then they write essays for the NYT about how it was really necessary to kill one of the twins, or how it was better to kill the 24 week old instead of delivering him.
*BUT* poor women will vote how they're told to vote. There's no reason for Dems to care about their health.
It's a stupid law. On the other hand, the abortion issue has given birth to many stupidities. In context this one is no better than middle of the pack.
This lawyer is a government worker, not an elected official or political appointee. He makes a nice middle class salary and has a pretty cushy work schedule. He could care less about his work because he gets paid for showing up. Government in action.
Blogger Deirdre Mundy said...
" So are surgicenters not required to have physicians with admitting privileges? There's a national group that certifies them, and they require admitting privileges."
I can't think of an outpatient surgery center that does NOT require admitting privileges. Except, of course, abortion clinics.
The outrage by the left is hypocritical but what else is new?
We used to have a local "doctor" who did home deliveries for women who wanted them. He also did not have admitting privileges so, when a woman was unable to deliver on her own, sometimes after 24 hours of labor and no fetal monitor, she would show up in the ER.
The local OBs hated that. The woman would be angry and ready to blame anyone but her quack home "doctor" for any complication. The hospital had a real revolt about ER call for OB. I don't remember how they finally resolved it.
Ann, the people I know who oppose abortion are "all in" because killing babies is wrong.
Are they Politicians?
Politicians who are "all in" are that way because it helps them get donations. That it might align with their actual beliefs is only coincidence.
Yeah, I don't know of any outpatient medical practice where they lack hospital admitting privileges outside of abortion clinics.
Why did they not focus on the non-existant cases?
Do apes normally murder their offspring? Under what circumstances is a pregnancy or infant aborted? Is it by the mother's hand, an intruder (i.e. competitor), or perhaps a jealous aunt?
Hey, abortion (at least the post-natal kind) is a long and noble tradition--- Look at Medea. She killed her children because her husband left her....
Why do you need new laws to deal with the Kermit Gosnells of this world?
Enforce the existing laws.
I'm pretty sure I recall that PA law was exempting abortion clinics from the regualtions that apply to other outpatient surgical clinics. i don't think that's necessarily the case in all states, but in some cases the abortion industry lobby and prochoice legislators and bureaucrats have pushed so hard for access that they've completely ignored safety.
If an OB-GYN (a surgical specialty) does not have hospital privileges, they were either denied them or had them removed. These are the only reasons a physician of this specialty would not have hospital privileges. This changes the calculus in determining if the requirement is reasonable. While the intent may be purposely obfuscatory, there is this reality to consider: these docs are not ones any rational person would choose.
Short version of C Stanley: back alley abortions with coat hangers are perfectly okay as long as the word "Abortion Clinic" are posted above the door.
Posner also cited figures that just .3 percent of abortions have medical complications.
Abortion social science is bullshit. Seriously. Nobody admits to their abortions, nobody talks about their abortions, Just how are you going to do accurate social science?
Just to give one example, abortion and breast cancer. You've got umpteen studies linking abortion and breast cancer. But the authorities still question the link. Why do they question the link? Because women don't like to talk about their abortions and we can't trust the social science.
The Supreme Court has said for 40 years that D&E is safer than birth. And then, oops, it turns out abortion doctors are inducing birth instead of a D&E. Apparently birth is safer than decapitating a baby inside the uterus. You'd think Posner would remember that little lesson.
Repeat after me: Birth is safer than miscarriages, birth is safer than miscarriages. If you can't even get that right, then please spare me your ".3" exactitude.
Ectopic pregnancies have gone up six-fold since Roe v. Wade, Posner. 1 out of 50 pregnancies are now tubal. Are you positive that scraping a uterus does not scar it? Do you have a clue?
Dr. Hern (late-term abortion provider) estimates that 10% of abortions are incomplete abortions. Yes, baby tissue might be left behind in your uterus. If he's right, that's 15,000 women a year who are heading to the emergency room.. See this for more risks.
no, sorry, 10% would actually be 150,000 women heading to the emergency room every year. So I was underestimating by a factor of 10.
Saint Croix- Oddly enough, if you miscarry naturally, your caring OB will point out all the long-term health and fertility risks of a D&C...
The idea being that if things are working as they should, it's better to avoid one.
And, uterine surgeries (the D&C is considered a surgery by real OBs) dramatically increase risk of future Hemorrhage, rupture, and death.
Which is why OBs want to know how many D&Cs you've had. They don't specify on the form abortive vs. no abortive. The surgery itself is a major risk factor....
Unless you go to an abortionist, in which case it's a simple procedure with no long-term side effects.
Because ABORTIONISTS DON'T DO FOLLOW-UP WITH THEIR PATIENTS.
Saint Croix-- EWTN isn't really a great source for this crowd....They won't trust anything from the Catholics...
But, here's NIH on complications from a D&C: http://www.nlm.nih.gov/medlineplus/ency/article/002914.htm
And the Mayo Clinic:
http://www.mayoclinic.com/health/dilation-and-curettage/MY00345/DSECTION=risks
Random women on Babycenter discussing how, after a D&C they needed regular monitoring of blood hormone levels to make sure all the fetal material was gone and how they had complciations:
http://community.babycenter.com/post/a27948041/have_you_also_experienced_post_d_c_complications
Mind you, these were from people who went to the doctor's office and were receiving follow-up care. Now imagine a woman having the same symptoms whose only contact with an 'OB/Gyn' has been her 30 minutes with that guy at the clinic....
Google around. D&Cs are no joke. I mean, sure they're safer than heart surgery--but that's because you can live without a uterus.
Oh-- another effect of D&Cs abortionists might forget to mention:
D&C is considered a uterine surgery. Multiple uterine surgeries increase your risk of rupture during labor and delivery. As a result, if you've had multiple D&Cs, your doctor may require you to have a C-section rather than a natural birth.
Also, Docs like to limit the number of lifetime uterine surgeries for a woman, because of rupture and hemorrhage risks. A woman who's had 6 or more surgeries (including D&Cs) has something like a 20% chance of DEATH if she has another.
Abortionists might want to point this out to repeat clients, since each surgery hurts your FUTURE chances of having a healthy child. So "I don't want a baby right now" can turn into "I'll never be able to have a baby."
One of my partners was there waiting for his case and observed all this.
This law has had it.
http://link.springer.com/article/10.1007/s10552-013-0325-7
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