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"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those edited, truncated, and lifted parts are indented. My additions / summaries are not. And hey! Please remember — these are generally taken from briefs and present the arguments of the party appealing (usually) or defending on appeal a lower court decision.
The case: Kaul v Urmanski
Case no.: 23AP2362
Filed in: Wisconsin Supreme Court (on bypass, skipping the Court of Appeals)
Circuit Judge: Diane Schlipper, Dane County
Filing Attorneys: Diane Welsh, Christa Westerberg, Will Kramer, and Elizabeth Pierson
Law firm / agency: Pines Bach
Four new briefs were filed last week in Kaul v. Urmanski, one of two state Supreme Court cases seeking to have the right to abortion protected in Wisconsin.
Today's featured brief was filed by the three doctors — Christopher Ford, Kristin Lyerly, and Jennifer McIntosh — who intervened in Attorney General Josh Kaul's original case seeking to preserve abortion rights in the state. Other plaintiffs include the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board, and a Clarence Chou, a doctor.
A post about Kaul's brief was posted Friday; about Milwaukee County District Attorney John Chisholm's brief on Saturday; and about Ozanne's brief on Sunday.
In this case, Sheboygan County District Attorney Joel Urmanski is appealing Dane County Circuit Judge Diane Diane Schlipper's ruling last year that an 1849 statute outlaws infanticide, not abortions. Urmanski is arguing that the law does apply to abortions and should be enforced in the wake of the U.S. Supreme Court's 2022 decision striking down Roe v Wade.
Intervenors' Introduction
This case is about whether an archaic statute that some see as an
abortion ban can cancel out an array of modern statutes regulating
abortion, such that physicians cannot provide a safe, common medical
procedure for their patients. For half a century, Wisconsin physicians
treating pregnant women have relied on state law to permissibly provide
abortions pre-viability with the informed consent of the patient or post-
viability, when an abortion was necessary to preserve the patient’s health
or life. Because some prosecutors now contend that they could file criminal
charges against physicians under Wisconsin’s archaic statute—Wisconsin
Statute section 940.04, there is confusion and concern among physicians,
including the Intervenor-Plaintiffs Dr. Christopher J. Ford, Jr. Kristen
Lyerly, and Dr. Jennifer Jury McIntosh (together, “the physicians”). The
physicians ask this court to declare that this archaic law is not enforceable
against physicians for performing abortions — before the lives and health of
pregnant women are jeopardized by threatened prosecutions of
healthcare providers.
Statement of the case
A. Origins of Wisconsin’s abortion laws
Wisconsin did not prohibit abortion at the time it gained statehood;
its earliest abortion law came into existence in 1849, a year later. The 1849
statute criminalized “the willful killing of an unborn quick child” by injury
to the mother or by administering to a woman “pregnant with a quick
child…any medicine, drug, or substance whatever… or any instrument or
other means, with intent thereby to destroy such child.” The word “quick” was deleted from each in 1858.
Until 1955, when the criminal code was revised, the law remained
essentially unchanged except for minor amendments. In 1955, the existing
abortion laws were consolidated and renumbered to section 940.04, in
substantially the form the statute remains today. In 1972, a federal district court ruled section 940.04’s prohibition on abortions of “an embryo which has not yet quickened” to be a violation of a woman’s right to privacy under the ninth amendment to the U.S. Constitution, and thus unenforceable . ... Three years later, the United States Supreme Court also concluded that such a prohibition violated women’s federal constitutional rights.
The only substantive change to section 940.04 since 1955 occurred in
2011, with the repeal of subsections ... which had imposed
criminal penalties on a woman obtaining an abortion. This Act also made clear that women may lawfully consent to and receive an abortion. Section 940.04 has not been enforced in Wisconsin since 1970.
B. Wisconsin’s modern abortion laws
In 1985, the Legislature passed the “Abortion Prevention and Family
Responsibility Act” which, among other things, established that a woman
who obtains an abortion may not be prosecuted, prohibits the performance of abortions post viability except to preserve the life or health of the mother, and requires abortion at any stage be performed by a physician. Other than minor changes to the felony classifications, the statute remains in its original form today.
The final version of 1985 Act 56 did not include any statutory or nonstatutory language indicating either a legislative intent to repeal or to not repeal section 940.04 with the enactment of section 940.15.
Since the passage of 1985 Act 56, the Legislature has enacted numerous additional abortion laws establishing when, where, how, and by
whom abortions may lawfully be obtained and performed.
Argument
In this case, every road leads to the same conclusion: section section 940.04 cannot be enforced against physicians who provide abortion care. First, subsequent legislation about abortion has superseded and repealed section 940.04 as an abortion statute. Second, as the circuit court determined, consistent with this Court’s precedent, section 940.04 must be read as a feticide ban, not a law about abortion. Third, if read as limiting abortion, (the law) would infringe on the physicians’ constitutional right to due process. The disuse of the statute over the past half-century only strengthens this due process argument.
I. Subsequent legislation about abortion has superseded and repealed the 1800s abortion law as an abortion statute.
The comprehensive scheme of abortion statutes the Legislature has enacted in the past half century is manifestly inconsistent with and repugnant to a reading of section 940.04 as banning all abortions from conception until live birth. And the comprehensive, modern statutory scheme now clearly governs the whole subject of abortion. This is true for several reasons, starting with the obvious: the Legislature is not in the business of enacting meaningless statutes describing in detail the procedures and circumstances to perform an act that is prohibited entirely by a different statute. In essence, Urmanski asks the Court to interpret decades of enactments by the Legislature as mere fools’ errands — on the books with zero legal effect — now that Roe has fallen, even though none of them declare such an intent.
This Court should not do what the Legislature itself declined to do: convert section 940.04 into a trigger ban. Numerous states enacted such trigger-ban abortion statutes. Wisconsin did not. Instead, the Legislature consistently and methodically enacted numerous abortion statutes over decades that together make clear when, how, and by whom abortions may be performed. They establish that pre-viability abortions performed by a physician who complies with numerous statutory and regulatory requirements are legal, as are post-viability abortions performed by a physician which are necessary to save the life or health of the pregnant patient.
Urmanski ignores the fact that even the very life-saving abortion that he says reconciles the statutes would violate section 940.04. This is because that life-saving abortion would not and could not be performed in a “licensed maternity hospital” as required under section 940.04(5)(c). At the time the Legislature enacted section section 904.04, a “licensed maternity hospital” was not simply a type of hospital, as Urmanski claims, but one holding a specific license for receiving, treating, and caring for certain women who were pregnant or within two weeks after childbirth. The license contained a numerical limit for the number of patients who could be treated and expired in December each year if certain requirements were not met. Id. Although there are certainly facilities in Wisconsin which treat pregnant or laboring women, there is no longer any hospital licensed as a “maternity hospital” in the State of Wisconsin because the licensure no longer exists.
Urmanski brushes off the statute’s plain language, arguing that even if no such licensed maternity hospitals exist, the subsection provides an exception to the requirement if “an emergency prevents” compliance and, under Urmanski’s theory, the categorical nonexistence of licensed maternity hospitals in Wisconsin would present just such an emergency. That the exception’s impossibility could itself supply the “emergency” required to comply with the exception is nonsensical and must be rejected.
The doctors argue, as Ozanne did, that more recent laws regulating abortion supersede the 1849 law banning abortion.
The fact that neither section 940.15 nor subsequent enactments are explicit in conferring a right to abortion does not mean they do not establish that abortions are legal. Criminal statutes are framed as prohibitions, not affirmations of rights. By creating section 940.15 and other regulatory statutes governing abortion, the Legislature has created a regulatory framework in which abortion is lawful under numerous circumstances.
Furthermore, section 940.04 has never been updated to reflect modern medical technology, medical standards, or hospital licensure law, similar to section 940.15 and later-enacted statutes. That the Legislature troubled itself to do this again and again with subsequent laws over the years, but did not bother with the archaic section 940.04, demonstrates without reasonable doubt that the later-enacted, more specific statutes governing abortion prevail.
The newer and more comprehensive laws the Legislature enacted defining when, how, where, and by whom abortions may be performed clearly replace the antiquated, less-defined reaches of section 940.04. Section 940.15 and other modern abortion statutes encompass the whole subject of abortion and embrace new provisions which plainly show they were intended as a substitute for the old law, and this Court should recognize the implied repeal of section 940.04 as a result.
The physicians also argued, as did Kaul and Ozanne, that the state Supreme Court, in its 1994 decision in State v Black, ruled that section 940.02(a) was a feticide statute, not an abortion statute.
Had the Legislature disagreed with Black’s interpretation of section 940.15 as the consensual abortion statute, over the past thirty years—including after the Dobbs
decision was issued—it could have acted accordingly to change the law,
including by inserting trigger language into section 940.04 so that it would
take effect if Roe was ever overturned. The Legislature took no such action.
***
Enforcing section 940.04 against physicians as an abortion law
would be unconstitutionally vague and fundamentally unfair, in violation
of due process. Section 940.04 is premised on arcane language, belies
modern medicine, contains impossible requirements, and is wholly
inconsistent with abortion laws enacted within the last half century. “No
one may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as to what
the state commands or forbids.”
It is important to note the very real risks that both physicians and women face as long as the threat of its (an abortion ban's) enforcement looms. Physicians must choose between exercising their best medical judgment—and risking a felony charge. They face putting off necessary care to avoid prosecution, thus risking the health and lives of their patients, and potentially subjecting themselves to malpractice liability.Urmanski’s suggestion that section 940.04 speaks
clearly enough on the circumstances of many or most abortions to be
enforceable brushes off the extremely high stakes for women and physicians in a landscape where local law enforcement and prosecutors have differing views on the legality of abortion. Those stakes include physicians’ licenses to practice medicine, their financial security, and their patients’ health and very lives.
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