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Court fumbles with abortion-case ruling

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

The Court of Appeals rejected Planned Parenthood’s bid for declaratory judgment on the construction of two abortion statutes, and in the process damaged the idea of justiciability.

Planned Parenthood operates reproductive health centers in Wisconsin, three of which provide abortions. Its protocol for a medication abortion follows national standards.

The procedure is that a woman is provided two oral medications on her second appointment at the clinic. She ingests the first medicine immediately. She ingests the second 24 hours later without returning to the clinic.

Sec. 253.105(2) is the state statute concerning medication abortion. It requires that a physician be “physically present in the room when the drug is given to the woman.” Violation of the statute could result in criminal liability.

Statutory ambiguities

Planned Parenthood asserted that the statute is ambiguous because the words “give” and “given” in the statute are susceptible to more than one reasonable interpretation.

On one hand, the words could mean the medications are dispensed to the woman in the presence of a physician. This was Planned Parenthood’s preferred interpretation.

On the other hand, the words could mean that the drugs are actually administered so that she ingests them in the physician’s presence. Under this interpretation, Planned Parenthood protocol as to the second medication would violate the statute.

Because of this ambiguity and the consequent uncertainty over exactly what conduct was criminalized, Planned Parenthood stopped providing medication abortions after the statute became effective in 2012.

Planned Parenthood also called into question the meaning of sec. 253.10 (3) (b) which requires a physician to determine whether a woman’s consent to abortion “is, in fact, voluntary.” One interpretation would be that it is a strict-liability statute. Another would be that it is a permissible defense to contend that a physician acted in good faith when making the voluntariness determination.

Lower court action

Planned Parenthood initiated court action in the Western District of Wisconsin. The parties reached a stipulation that “give/given” meant dispensed or handed to the woman and the consent statute was not a strict-liability statute. Judge Barbara Crabb, however, could not enter the stipulation because no constitutional question was presented.

Planned Parenthood then started a declaratory-judgment action in Dane County Circuit Court to resolve these matters of statutory construction.

Since a violation of the statute concerning medication abortion could result not only in criminal liability but also civil liability and professional discipline, Planned Parenthood sued the attorney general, a representative of the 72 currently serving district attorneys in Wisconsin’s counties, and members of the Medical Examining Board, the entity empowered to impose professional discipline.

The defendants argued that both statutes were clear on their face and meant what Planned Parenthood sought to have declared, therefore no declaration was needed. They also argued that the complaint did not present a justiciable controversy.

In a 24-page decision, Judge Richard Niess determined that the controversy was justiciable because the statutes are ambiguous and the mere expressed intent of the defendants to interpret the statutes as Planned Parenthood desired did not prevent the parties from being adverse.

He declared that “give/given” meant dispensed, not administered, and the consent statute was not a strict-liability statute.

The defendants appealed on justiciability grounds.

Majority opinion

The Court of Appeals, in a divided ruling, reversed the lower court. The judges in the majority decided that the action was not justiciable. Judge Mark Gundrum was the author of the court’s opinion, concentrating on Planned Parenthood’s lack of standing to bring the action.

His analysis rested first on his declaration that in Planned Parenthood’s undisputed procedure for medication abortions, the physician is present when the two medications are “dispensed.” Therefore there would be no violation under that interpretation of “give/given.”

As to the second interpretation — that “give/given” means administering the drugs to the woman — Gundrum pronounced that a Planned Parenthood physician could not be in violation of the law. The physician does not “administer” the second medication, Gundrum concluded, since the woman takes it herself.

In respect to the voluntary-consent statute, Gundrum determined that Planned Parenthood failed to show any future harm since it has continued to obtain consent before surgical abortions.

He further noted that in both their appellate brief and the stipulation during the pendency of the federal action, the defendants expressed “their clear belief” that the voluntary-consent statute “will be” governed by the good-faith standard.

Yet at the same time, Gundrum acknowledged that none of the defendants — or their successors — is bound by a brief or a stipulation not entered into the record.

And even though he recognized that Planned Parenthood physicians “do not need to await actual legal action or even a clearly expressed threat of legal action against them in order to have standing for a declaratory judgment,” he concluded the controversy was not justiciable.


In a cogent and thorough dissent, Chief Judge Lisa Neubauer debunked the majority opinion. She first observed the paradox that although the majority concluded the matter was non-justiciable, it nonetheless construed the medication-abortion statute.

She found the statute ambiguous. She painstakingly deconstructed the statute to show that the majority’s pronouncement about the meaning of “given to the woman” was inconsistent with canons of statutory construction and common sense.

She found the matter justiciable because mere statements by the defendants that they agreed with the desired interpretation of the statute did not render the parties non-adverse. She quoted John Adams: “Court access to resolve legitimate issues of statutory construction does not turn upon the good faith of government officials.”

As to the voluntary consent statute, Neubauer criticized the majority’s non-justiciability conclusion as unsupported in declaratory-judgment jurisprudence.

Here, as had Niess, she presented the leading Wisconsin cases on justiciabilty and the difference between an actual threat and a direct threat. That is, Planned Parenthood’s physicians are directly threatened by the voluntary-consent statute even if they are not actually prosecuted under it.

Lastly, she noted that the defendants did not challenge Judge Niess’ ambiguity findings or his interpretation of either statute, thus conceding his conclusions. Therefore, Niess’ decision should have been affirmed.


The dissent outweighs the majority opinion in legal reasoning and force of logic.

The majority opinion lacks depth and clarity, and turns the law of justiciability — particularly the concept of standing — on its ear.

It misunderstood direct versus actual harm, as well as future harm. In the process, it simply — and shockingly — took the defendants’ word that they wouldn’t proceed against Planned Parenthood in any of the three legal forums.

It’s possible that Planned Parenthood will not petition the Supreme Court for review because in a sense it obtained a favorable outcome: a declaration that it could not be in violation of the medication-abortion statute.

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