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Three more briefs were filed in Kaul v Urmanski this week, each supporting abortion rights in Wisconsin.
We already covered four earlier briefs. You can find those posts by clicking on the "September" link in the list to the right. Those briefs were filed by Attorney General Josh Kaul; Milwaukee County District Attorney John Chisholm; Dane County District Attorney Ismael Ozanne; and intervenor physicians Christopher Ford, Kristin Lyerly, and Jennifer McIntosh.
We are summarizing the new amici briefs in a single round-up, led off by a filing by Madison Mayor Satya Rhodes-Conway; Portage Mayor Mitchel Craig; Verona Mayor Luke Diaz; Eau Claire Alders Aaron Brewster and Larry Mboga; and Sun Prairie Alder Cassi Benedict. The two other new briefs were filed by the Association of Prosecuting Attorneys and a group of medical organizations including the American College of Obstetricians and Gynecologists, American Medical Association, Wisconsin Medical Society, and Society for Maternal-Fetal Medicine.
We are compressing the filings into one post partly in the interest of time an partly because some of their also are in the earlier briefs. The filings have been edited for length and ease of reading.
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.
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
Brief: Amicus — Local elected officials in Wisconsin
Filing Attorney: Sarah Zylstra
Law firm / agency: Boardman & Clark
Filing Attorney: Joshua Rosenthal and Aadika Singh
Law firm / agency: Public Rights Project
Filing Attorney: Margaret Dale, Jana Ruthberg, and Michael Beckwith
Law firm / agency: Proskauer Rose
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.
Local elected officials' statement of interest
At its core, this case concerns access to healthcare when it is most needed. In no other context are individuals facing significant health risks denied clear and necessary care. Yet, under a misapplication of this statute, pregnant individuals — and only pregnant individuals — could be deprived of life-altering treatment. We are acutely aware of the crucial role abortion access plays in both the health and economic well-being of our communities. In amici’s view, allowing prosecutors and law enforcement to retrospectively second-guess precarious emergency healthcare decisions entangles them in matters they are not equipped to manage. This imposition not only misconstrues the role of law enforcement but also undermines community trust and threatens public safety, impairing the ability of all local elected officials to do our jobs. Amici file this brief to advance our shared interest in maintaining public safety, ensuring confidence in law enforcement, and protecting the health and safety of our communities, including preserving access to essential healthcare.
The officials said the Supreme Court, in State v. Black, ruled that Wis. Stat. § 940.04 prohibits feticide, not consensual abortion. That argument echoes the finding Schlipper made in her ruling.
Introduction
Urmanski’s proposed interpretation is “unworkable in practice,” particularly for the local governments throughout the state that would bear the burden of such an interpretation. Interpreting Wis. Stat. § 940.04 as an abortion ban would result in an unworkable burden on local officials; on institutions struggling to maintain the trust of vulnerable communities; on healthcare providers forced to limit their medical judgment to meet archaic standards; and on law enforcement forced to second-guess those doctors. ...
Interpreting § 940.04 to allow the prosecution of doctors for performing any abortions will — as it has in the past — result in dire consequences for the people of Wisconsin. Doctors will likely face unjustified prosecution and feel pressured to leave the state, or the practice, taking medical care away from the people of Wisconsin. Victims may be unwilling to report crimes that result in pregnancy — sexual assault is already the most under-reported violent crime in the state — for fear of prosecution. And prosecutors will be given the impossible task of trying to discern when an abortion was necessary to save the life of the pregnant person, something on which even trained doctors may not agree. For this reason, many local officials have publicly objected to prosecuting abortion in any form and recognize the disastrous consequences for their communities if they were forced to do so.
Argument
Women engage less with the healthcare system in states that have criminalized abortion post-Dobbs v. Jackson Women's Health Organization. This includes women who have no intention of getting an abortion. And the effect is more pronounced in populations marginalized on account of their wealth or race. The confusion around criminalization chills people from accessing prenatal care. In short, criminalizing decisions or statuses decreases trust and engagement across-the-board, even among those who do not share the impugned status, nor engage in the proscribed decisions.
A lack of public trust also compromises public safety. When abortion is criminalized, pregnant victims of serious crimes may hesitate to cooperate with law enforcement and prosecutors. This undermines efforts to combat serious crimes, such as intimate partner violence. Considering that the rate of people dying because of intimate partner violence is rising in Wisconsin, lack of trust from the citizens prosecutors serve could contribute to serious crimes like these going unreported, undetected, and unpunished.
Many other local officials are impacted by and invested in the interpretation of this statute. ... The Dane County Sheriff seeks to focus his resources on violent crimes, stating that it “does not have the resources nor expertise to investigate medical professionals conducting medical procedures in medical facilities.”
Interfering with healthcare decisions and prosecuting abortion providers also risks further trauma for victims of sexual abuse, rape, incest, trafficking, and domestic violence. Over one million Wisconsin adults have reported experiencing sexual violence of some kind. It is estimated that, since Dobbs, nearly 65,000 pregnancies have been caused by rape in the 14 states where abortion is now banned. Wisconsin citizens deal with painful losses caused by miscarriage or abuse, or voluntary terminations that follow an act of rape, or are due to fetal health issues or health risks posed to the pregnant person. Their trauma would only be compounded by having to process these experiences through the criminal justice system. The threat of prosecution could also be “weaponized by abusers,” who could suggest to law enforcement that a miscarriage was really an illegal abortion. This kind of invasion into the personal sphere is as inappropriate for local actors to have to enforce as it is harmful.
Wisconsin prosecutors, local officials, and members of law enforcement have limited resources and are stretched thin.
Adding an unnecessary, new area of criminal enforcement — complex and controversial abortion cases — to local officials’ already-full plate is not in the best interest of Wisconsin officials, the communities they serve, or the state at large.
Filing Attorney: Breanne Snapp
Law firm / agency: Habush, Habush & Rottier
Filing Attorney: Nicole Saharsky
Law firm / agency: Mayer Brown
Medical organizations' statement of interest
Amici are leading organizations representing physicians and other medical professionals who serve patients in Wisconsin and beyond. Collectively, amici include hundreds of thousands of medical professionals. Among other things, amici advocate for patients and practitioners, educate the public about reproductive health, and work to advance the ethical practice of medicine.
Amici are dedicated to ensuring access to the full spectrum of safe and appropriate health care, and work to preserve the patient-clinician relationship. Patients, in consultation with their health care professionals, should have the autonomy to determine the appropriate course of medical care, based on the medical evidence and the patient’s own individualized needs, medical history and preferences, without undue interference from third parties. Amici oppose laws that would substitute lawmakers’ political agenda for the educated and considered decisions that patients make in consultation with their medical professionals.
Introduction and summary of argument
Abortion care is an essential part of comprehensive health care. When abortion is legal, it is safe. Amici are leading medical societies whose policies represent the education, training, and experience of the vast majority of clinicians in this country. Amici believe that laws that criminalize and effectively ban abortion care are not based on any medical or scientific rationale. Those laws also threaten the health of pregnant patients; disproportionately harm patients of color, patients in rural settings, and patients with low incomes; and profoundly interfere with the patient-physician relationship and undermine longstanding principles of medical ethics.
Since 1973, the Wisconsin Legislature has enacted several statutes that regulate abortion as a lawful medical procedure. Wisconsin Statute § 940.15 permits abortion care up to the point of fetal “viability,” with exceptions to “preserve the life or health of the woman.” Wisconsin Statute § 253.107 prohibits abortion care after 20 weeks except in a “medical emergency.” In light of these statutes, the Circuit Court correctly held that Wisconsin Statute § 940.04 (originally enacted in 1849) applies only to feticide and does not ban impose a near-total ban on abortion care. Amici oppose any interpretation of Section 940.04 that would ban abortion care, because that interpretation would jeopardize the health and safety of pregnant people in Wisconsin and places extreme burdens and risks on providers of essential reproductive health care, without a valid medical justification. Amici urge the Court to affirm.
Argument
The medical evidence conclusively demonstrates that abortion care is very safe. Complication rates are extremely low, averaging around 2%, and most complications are minor and easily treatable. Abortion care is so safe that there is a greater risk of complications or mortality for wisdom-tooth removal, cancer-screening colonoscopy, and plastic surgery.
Abortion care poses no significant risks to mental health or psychological well-being. People who obtain wanted abortion care had “similar or better mental health outcomes than those who were denied a wanted abortion,” and receiving abortion care does not increase the likelihood of developing symptoms associated with depression, anxiety, posttraumatic stress, or suicidal ideation compared to those who were forced to continue a pregnancy. One recent study noted that 95% of participants believed an abortion was the “right decision for them” three years after the procedure.
Statutes that ban or restrict access to abortion care cause severe physical and psychological health consequences for pregnant patients that seek that care. Limited exceptions, such as those that would allow abortion care only when necessary to save the patient’s life, are insufficient to protect the health of pregnant patients.
Criminalizing safe abortion care will result in delays in obtaining abortion care, increased use of unsafe self-managed abortion methods, and an increased likelihood that patients will be forced to continue pregnancies to term. All of these consequences entail significant health risks.
Many delays in seeking abortion care are caused by a lack of information about where to find that care. The need to travel out of state and consider various states’ criminal and civil penalties further increases confusion about where to access needed health care. In addition, almost one-third of delays are caused by travel and procedure costs.
Interpreting Section 940.04 to eliminate licensed abortion clinics and impose a near-total ban on abortion care will increase these costs. Longer travel distances mean higher travel costs, which can cause a patient to delay needed abortion care until later in a pregnancy. Although the risk of complications from abortion care overall remains exceedingly low — especially compared to the health risks of carrying a pregnancy to term — increasing gestational age increases the chance of a major complication. Abortion care at later gestational ages also is typically more expensive.
Interpreting Section 940.04 as removing access to safe, legal abortion care would also increase the possibility that a pregnant patient will attempt a self-managed abortion through a harmful or unsafe method.
Patients who do not, or cannot, obtain abortion care will be forced to continue a pregnancy to term — an outcome with significant health risks. The U.S. mortality rate associated with live births from 1998 to 2005 was 8.8 deaths per 100,000 live births, and rates have sharply increased since then. In contrast, the mortality rate associated with abortion care performed from 1998 to 2005 was 0.6 deaths per 100,000 procedures, meaning that a pregnant patient’s risk of death associated with childbirth is approximately 14 times higher than any risk of death from abortion care.
Continued pregnancy and childbirth also entail other substantial health risks. Even an uncomplicated pregnancy causes significant stress on the body. Moreover, continuing a pregnancy to term can exacerbate underlying health conditions or lead to newly arising health issues.
Evidence also suggests that pregnant people denied abortion care are more likely to experience negative psychological health outcomes — like anxiety, lower self-esteem, and lower life satisfaction — than those who obtained needed abortion care.
If Section 940.04 were interpreted to ban abortion care, its sole exception would be insufficient to protect the health of pregnant patients. The exception would allow for abortion care if it “is necessary . . . to save the life of ” the patient. The law does not define “necessary.” The law does not include any exceptions for cases of threats to the patient’s health, or for rape, incest, or fetal abnormalities.
The narrow exception in Section 940.04 applies only when “necessary” to save the patient’s life. Coupled with the threat of criminal sanctions, interpreting this statute to cover abortion care necessarily will chill the provision of critical medical care ... because doctors will be unsure when they will be able to provide needed abortion care for their patients. It is untenable to force pregnant patients to wait to obtain abortion care until their medical condition escalates to the point that abortion care is necessary to prevent death. Further confusion will arise when doctors manage early pregnancy loss. For example, incomplete miscarriages are commonly treated via uterine aspiration, which is an abortion. But Section 940.04 does not clearly state that miscarriage management is permissible.
Physicians should not be put in the impossible position of either letting a patient deteriorate until death is possible or facing potential criminal punishment for providing needed care consistent with their medical judgment but still potentially in contravention of Section 940.04. ... Decisions about whether to continue a pregnancy are properly left to clinicians and patients, rather than legislators. Legislators are not and should not be in the exam room, and do not have the training or experience to exercise medical judgment to evaluate complex or developing situations and recommend a course of treatment. Interpreting Section 940.04 to cover abortion care would indefensibly jeopardize patients’ health.
Patients with limited means and patients living in geographically remote areas will be disproportionately affected by Section 940.04, which will require them to travel longer distances (and pay higher associated costs) to obtain safe, legal abortion care. These travel and procedure costs will be compounded by the fact that other Wisconsin laws create substantial financial barriers to abortion care, such as lack of coverage under insurance policies for public employees and health plans offered in the state’s health exchange, except in cases of life endangerment, severely compromised health, or rape or incest.
Brief: Amicus — Association of Prosecuting Attorneys
Filing Attorneys: Tamar Kelber and Jerome Mohsen
Law firm / agency: Gass Turek
Association's statement of interest
The Association of Prosecuting Attorneys (“APA”) is a national nonprofit organization created by prosecutors from across the country to strengthen their efforts in ensuring safer communities and improving their performance in the criminal justice system.
The APA files this brief in support of Respondents to explain that (1) prosecutorial discretion is essential to a strong judicial system and strong communities, and therefore, the APA has an interest in ensuring that prosecutorial discretion is defined and used appropriately, (2) the use of prosecutorial discretion does not apply to the issues in this case where consensual abortion is not covered by Wis. Stat. § 940.04, and (3) this Court should affirm the Dane County Circuit Decision and Order declaring Wis. Stat. § 940.04 does not apply to abortions.
Argument
Here — where the issue before the Court is the interpretation of a clear and unambiguous statute — prosecutorial discretion is not relevant. Wis. Stat. § 940.04 is a feticide statute which does not apply to consensual abortion.
Prosecutors serve the public interest by pursuing criminal charges with adequate severity and by exercising discretion to not pursue charges when appropriate. The National District Attorney Association standards direct prosecutors to “screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not.
It is important for the court to be clear that respondent Urmanski’s convoluted statutory interpretation is not an exercise of prosecutorial discretion. To hold otherwise would be to erode the foundation of the role prosecutors play in appropriately exercising discretion.
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