Scholarly Commons @ IIT Chicago-Kent College of Law

Article Title

Judge Posner Got It Right: Requiring Abortion Doctors to Have Hospital Admitting Privileges Places an Undue Burden on a Woman Seeking an Abortion

Authors

Kelly K. Koss, IIT Chicago-Kent College of Law

Abstract

Anti-abortion activists have sought to undermine and restrict a woman's right to choose ever since 1992, when the Supreme Court replaced Roe v. Wade's strict scrutiny analysis with the looser undue burden test in Southeastern Pennsylvania v. Casey. Under Casey's undue burden test, a state regulation cannot have the "purpose or effect of placing a significant obstacle in the path of a woman seeking an abortion of a nonviable fetus." However, the Casey Court failed to define the types of regulations that would run afoul of the undue burden test and create a "substantial obstacle" in the path of a woman seeking an abortion.

As a result of this ambiguity, anti-abortion advocates have spent the last two decades trying to test the boundaries of the undue burden test. One popular approach has been to promulgate incremental regulations that chip away at a woman's right to seek an abortion. Targeted Regulation of Abortion Providers (TRAP) laws are one form of these incremental regulations. One such TRAP law is at issue in the Seventh Circuit's case Planned Parenthood of Wisconsin Inc. v. Van Hollen. The TRAP law at issue was a Wisconsin law requiring abortion doctors to have admitting privileges at a hospital within thirty miles of a clinic where an abortion is performed.

Although the question before the court was technically limited to whether the preliminary injunction prohibiting the Wisconsin law from going into effect was justified, Judge Posner reasoned that that law was unconstitutional and should be struck. When the Supreme Court decides to hear a case involving a similar admitting privileges TRAP law, the Court should use Judge Posner's reasoning as a guide to strike down the law. These admitting privileges statutes are unconstitutional because: (1) these laws place an undue burden on a woman seeking an abortion by dramatically impacting the practical availability of abortion within a state; (2) these laws bear no rational relationship to their purported purpose of protecting maternal health; and (3) these laws violate equal protections of the law by singling out abortion doctors for increased oversight.

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Recommended Citation

Kelly K. Koss, Judge Posner Got It Right: Requiring Abortion Doctors to Have Hospital Admitting Privileges Places an Undue Burden on a Woman Seeking an Abortion, 9 Seventh Circuit Rev. 263 (2014).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol9/iss2/4