>> THE LEAKED SUPREME COURT
DRAFT OPINION OVERTURNING ROE V.
WADE THIS WEEK CAUSED IMMEDIATE
REACTION NATIONWIDE AND AT HOME.
BECAUSE THE IMPLICATIONS OF THE
RULING, EXPECTED TO BE ISSUED
FORMALLY IN LATE JUNE, ARE THAT
ABORTION WILL NO LONGER BE LEGAL
IN MANY STATES, INCLUDING
WISCONSIN.
WE'LL TALK ABOUT HOW THE LEAKED
DRAFT SHAKES UP POLITICS IN
WISCONSIN JUST AHEAD OF
ELECTIONS WITH ZAC SCHULTZ AT
THE CAPITOL.
BUT FIRST, WE TURN TO MARQUETTE
UNIVERSITY LAW SCHOOL PROFESSOR
AND FORMER WISCONSIN SUPREME
COURT JUSTICE, JANINE GESKE.
THANKS VERY MUCH FOR BEING HERE.
>> MY PLEASURE.
THANK YOU.
>> SO AS TO THE HIGH COURT DRAFT
OPINION ON ROE V. WADE, I HEARD
YOU SAY YOU THINK STABILITY OF
THE LAW AND PRECEDENT ARE
IMPORTANT.
SHOULD THIS DRAFT BECOME THE
FINAL RULING, WHAT DO YOU THINK
ABOUT WHETHER IT UPSETS
PRECEDENT CAUSING INSTABILITY?
>> WELL, IT CERTAINLY UPSETS
PRECEDENT.
WE'VE HAD PRECEDENT FOR 50 YEARS
WITH SOME MODIFICATIONS, SLIGHT
MODIFICATIONS, WHICH IS A NORMAL
PROCESS.
I THINK IT REALLY DOES CAUSE
INSTABILITY.
IT TURNS EVERYTHING UPSIDE-DOWN.
WE'RE GOING FROM SUDDENLY SAYING
IT'S A CONSTITUTIONAL RIGHT OF
WOMEN TO BE ABLE TO MAKE THIS
DECISION ABOUT THEIR OWN BODIES,
THAT IF THAT OPINION IS ADOPTED,
THAT THERE IS NO CONSTITUTIONAL
RIGHT TO THAT PRIVACY AND THAT
THE STATES CAN MAKE THEIR
DECISIONS AS TO WHAT RIGHTS THEY
WANT TO GIVE WOMEN.
>> SO DOES THROWING EVERYTHING
UPSIDE-DOWN, IS THAT A BAD THI
THING?
>> WELL, I THINK IT IS.
YOU KNOW, THERE ARE TIMES IT IS
NEEDED, YOU KNOW.
DISCRIMINATION IN SCHOOLS, BROWN
VERSUS BOARD OF ED AND THOSE
KINDS OF CASES, IT WAS CLEAR.
THIS HAS BEEN A TOUGH, TOUGH
ISSUE FOR THIS COUNTRY.
WE HAVE VERY DIVIDED POPULOUS
ISSUE.
BUT I THINK THAT SLIGHT
MODIFICATIONS IN MOVING WITH IT
IS SOMETHING PEOPLE CAN ADJUST
TO.
I THINK THERE IS -- THERE'S
ALREADY BEEN A REACTION, THERE
WILL BE A HUGE REACTION, FRANKLY
EITHER WAY IT GOES IN THE
SUMMER.
AND I THINK IT'S UNFORTUNATE
THAT THERE'S GOING TO BE SUCH --
IF THAT OPINION IS RIGHT, SUCH
AN UPHEAVAL, WHAT'S BEEN THE LAW
FOR 50 YEARS.
>> THE U.S. SUPREME COURT WOULD
THROW THE ISSUE NOW OF ABORTION
BACK TO THE STATES.
WISCONSIN FOR ITS PART HAS HAD
AN 1849 LAW ON THE BOOKS THAT
READS, "ANY PERSON OTHER THAN
THE MOTHER WHO INTENTIONALLY
DESTROYS THE LIFE OF AN UNBORN
CHILD IS GUILTY OF A CLASS H
FELONY."
SO IT PROHIBITS WISCONSIN
DOCTORS FROM PERFORMING
ABORTIONS EXCEPT TO SAVE THE
LIFE OF THE MOTHER AND ALLOWS
FOR UP TO SIX YEARS IN PRISON
AND $10,000 IN FINES.
UNDER YOUR READING OF THAT
173-YEAR-OLD LAW, WOULD IT MEAN
THAT THE MOTHER COULD INDUCE,
SAY, A MEDICAL OR MEDICATION
ABORTION WITHOUT PENALTY?
>> UNDER THAT LAW, IT APPEARS
THAT.
BUT I DO BELIEVE THERE'S A 1950
LAW THAT ALSO MADE IT CRIMINAL
FOR A WOMAN TO SELF-PROCURE AN
ABORTION, AND SO -- AND I
SUSPECT THAT OUR LEGISLATURE IS
PROBABLY GOING TO GO IN THAT
DIRECTION AND CLARIFY THAT.
BUT OTHER THAN THE OLDER LAW
CLEARLY THERE'S SOMEBODY GIVING
OR DELIVERING AN ABORTION, IT
WAS NOT THE PERSON WHO IS HAVING
THE ABORTION PERFORMED ON HER.
>> NOT WITHSTANDING SOME OF
THOSE MODIFICATIONS, CAN COURTS
REALLY DEPEND ON A 19TH CENTURY
LAW THAT JUST LANDS BACK ON THE
BOOKS?
>> WELL, IT'S CHALLENGING, AND I
SEE OUR ATTORNEY GENERAL IS
RAISING THAT ISSUE OF WHETHER OR
NOT THAT LAW BECOMES ALMOST
EXTINCT, BUT YOU KNOW, I THINK
THAT'S A TOUGH ARGUMENT.
IT'S ON THE BOOKS, THE
LEGISLATURE HAS DECIDED FOR
WHATEVER REASON NOT TO REMOVE IT
ALL THOSE YEARS, AND SO I THINK
IT DOES BECOME THE LAW UNLESS
IT'S MODIFIED AGAIN BY THE
LEGISLATURE.
AND SO WE'LL SEE WHAT HAPPENS.
I KNOW THE ATTORNEY GENERAL HAS
SAID HE'S NOT GOING TO ENFORCE
IT, BUT WE HAVE 72 COUNTIES WITH
PROSECUTORS WHO WOULD CERTAINLY
BE ABLE TO DO THAT.
>> SO AS TO THAT, WOULD THE
DISTRICT ATTORNEYS IN THE
72 COUNTIES BE ABLE TO DECIDE
WHETHER TO ENFORCE OR NOT?
>> WELL, THAT'S AN INTERESTING
QUESTION.
I BELIEVE THEY COULD.
PROSECUTORS HAVE A FAIR AMOUNT
OF DISCRETION OF WHEN TO ISSUE
CHARGES AND NOT ISSUE CHARGES.
IT'S PRETTY RARE, THOUGH, THAT A
PROSECUTOR SAYS I'M NEVER GOING
TO ENFORCE A LAW UNDER ANY
CIRCUMSTANCES.
AND I'M SURE THERE WOULD BE AN
ATTEMPT BY THOSE WHO BELIEVE
THAT IT SHOULD BE PROHIBITED TO
BRING IN WHAT WE CALL A MANDAMUS
OR DECLARATORY JUDGMENT ACTION
IN A COURT TO FORCE A PROSECUTOR
OR TO APPOINT A SPECIAL
PROSECUTOR.
BUT PROSECUTORS HAVE A LOT OF
DISCRETION, SO I JUST SEE
THERE'S GOING TO BE A LOT OF
LITIGATION, WHICH GETS BACK TO
OUR INSTABILITY IN THE LAW.
WE'RE GOING TO HAVE TO MAKE ALL
SORTS OF NEW CASES AND THE
LEGISLATORS WHO HAVE NOT DEALT
WITH THIS ISSUE FOR A VERY LONG
TIME, SUDDENLY ARE GOING TO BE
VERY INVOLVED IN THIS ISSUE, AND
AN ISSUE THAT PEOPLE CARE VERY
MUCH ABOUT.
>> VERY MUCH HAS BEEN MADE ABOUT
THE LEAK OF THIS DRAFT SUPREME
COURT OPINION ON ROE V. WADE
WITH SOME SAYING IT'S NOT THE
LEAK AT ISSUE, IT'S THE MEAT OF
THE RULING.
WHAT IS YOUR OPINION OF THE LE
LEAK?
>> IT'S VERY SERIOUS.
IT IS VERY IMPORTANT THAT THE
COURT IS WORKING AND TRYING TO
DRAFT AND COME TO A CONCLUSION
ON A FINAL DECISION, REMAIN
CONFIDENTIAL.
AND YOU KNOW, WHEN I WAS
THINKING ABOUT THIS DRAFT, IT
COULD BE ANYTHING FROM THE CHIEF
JUSTICE SAYING TO JUSTICE ALITO,
YOU BELIEVE THAT IT SHOULD BE
TOTALLY REMOVED.
WRITE THAT DECISION AND LET THE
REST OF US REACT TO IT.
AND THEN WE'LL WRITE AND SEE
WHETHER WE MODIFY IT OR WE -- IT
SOUNDED LIKE DURING QUESTIONING,
THAT JUSTICE ROBERTS MIGHT BE
INTERESTED IN JUST UPHOLDING THE
MISSISSIPPI LAW.
SO YOU KNOW, A FIRST DRAFT
RARELY STAYS THE SAME TO THE
FINAL DRAFT, AND THE FACT THAT
IT'S BEEN LEAKED, NOW PEOPLE ARE
GOING TO THINK THAT THE PUBLIC
REACTION IS GOING TO INFLUENCE
THE DECISION, BECAUSE
EVERYBODY'S HAD A CHANCE TO SEE
IT.
AND THAT'S UNFORTUNATE.
>> WE'LL SEE WHAT THE FINAL
OPINION LOOKS LIKE.
JANINE GESKE, THANK YOU VERY
MUCH.
>> THANK YOU.