Planned Parenthood would expand access to abortion medication across Wisconsin if its lawsuit succeeds

MADISON – Planned Parenthood of Wisconsin will make abortion-inducing pills available at more than two dozen clinics if it succeeds in striking down several state laws, an attorney for the abortion provider said at the opening of a trial Monday. 

In its lawsuit, Planned Parenthood argues Wisconsin unconstitutionally interferes with the right to abortion with a series of statutes that dictate how the procedure can be offered. 

Because of those limits, Planned Parenthood provides abortion at clinics in three cities — Milwaukee, Madison and Sheboygan. But if it prevails in the lawsuit, it will make pills that induce abortion available at all of its 24 clinics, as well as at two new clinics it will open, Planned Parenthood attorney Lori Day said during opening arguments. 

The state’s limits on abortion have made it more costly and more difficult for women to obtain an abortion, particularly if they are low-income or live in rural areas, Day said. 

“The restrictions prevent a large fraction of Wisconsin women from obtaining an abortion at all,” she said.

Assistant Attorney General Brian Keenan disputed that claim, arguing the number of abortions in Wisconsin would increase by just 10% to 15% if Planned Parenthood succeeded with the lawsuit. He contended the state’s abortion laws are constitutional and noted the limits have been in place for years. 

“There are a number of women obtaining abortion despite these laws,” he said. 

The case is being heard by U.S. District Judge William Conley, a nominee of President Barack Obama who sided with Planned Parenthood in 2015 when he struck down a law that would have required doctors who provide abortions to have admitting privileges at nearby hospitals. An appeals court upheld his decision and the U.S. Supreme Court let it stand.

Planned Parenthood may have a tougher time with its latest lawsuit because the 7th Circuit Court of Appeals and U.S. Supreme Court have become more conservative in recent years.

Planned Parenthood brought its latest lawsuit in 2019. It argues advanced practice nurses, such as nurse practitioners and nurse-midwives, should be allowed to provide medication that induces abortion. Under Wisconsin’s laws, only doctors can provide such medication. 

The lawsuit also seeks to allow women to consult with doctors or nurses through video links when they take the medication. That would save women the time and expense of having to travel to urban areas. 

The laws are being defended by the office of Attorney General Josh Kaul, a Democrat who was endorsed by an arm of Planned Parenthood.

Republican lawmakers questioned whether he would fully defend the laws and sought to intervene in the case. Conley declined to let them last year, saying Kaul had not faltered in arguing in favor of the laws. The 7th Circuit Court of Appeals agreed with the decision to keep GOP lawmakers out of the case, at least for now. 

Trial to last days

Women seeking drugs that cause abortions must get a physical examination from a doctor at least 24 hours in advance. The same doctor must be in the room with the woman when she is given an initial drug. The woman takes a second drug 24 hours later at home.

Day argued those laws serve no medical purpose and drive up the costs and difficulties for women seeking abortions. 

Last year more than 300 women in Wisconsin had to have three appointments instead of two because the doctor they saw the first time wasn’t available for their second appointment, Day said. If the same-physician requirement were not in place, they would have been able to have just two appointments. 

The trial is expected to take a few days and much of Monday’s proceedings consisted of testimony from Kathy King, the medical director of Planned Parenthood of Wisconsin. 

She said women seeking abortions don’t understand why the law requires them to see the same doctor twice before they can receive an abortion — particularly when that requirement results in them having to schedule an additional, medically unnecessary appointment when the doctor they saw initially is not available for a second appointment. 

“They’re puzzled, they’re frustrated and sometimes they’re downright angry,” King testified. 

Some women who want to receive abortion medication end up having to get surgical abortions because Wisconsin’s restrictions can cause delays, King said.

“Some of them feel stripped of their autonomy,” she testified. 

Because the doctor is required to be in the room when the drug is given, women cannot rely on nurses or use video links to consult with doctors for medication abortions, as they can in some other states.

That means women in rural areas have to drive, sometimes for hours, to get the drugs, King testified. Those who come from long distances have to stay overnight because of the requirement to get a physical examination from the same doctor 24 hours before they get the drugs.

Advanced care nurses provide medication abortions in California, Vermont and New Hampshire, according to the suit. Iowa, Illinois and at least nine other states allow medication abortions to be provided through video consultations.

Day argued Wisconsin’s laws violate women’s constitutional right to privacy included in the 14th Amendment’s guarantee of due process. The laws also violate the rights to equal protection under the law for Planned Parenthood’s doctors, nurses and patients, Day said.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.