% ♪
% >> A DANE COUNTY JUDGE THIS WEEK
% HEARD ARGUMENTS WHETHER TO
% DISMISS ATTORNEY GENERAL JOSH
% KAUL'S LAWSUIT OVER WISCONSIN'S
% ABORTION STATUTES.
% A NEAR TOTAL BAN ON ABORTIONS
% FROM 1849 IS BACK ON THE BOOKS
% AFTER THE U.S. SUPREME COURT
% OVERTURNED ROE VERSUS WADE.
% THE ARGUMENTS IN COURT FOCUSED
% ON DISTRICT ATTORNEY JOEL
% URMANSKI'S MOTION TO DISMISS.
% KAUL AND ATTORNEYS ON HIS SIDE
% ARGUE A MORE PERMISSIVE ABORTION
% LAW PASSED IN 1985 CONFLICTS
% WITH THE EARLIER STATUTE AND
% ALSO THAT THE EARLIER BAN IS
% NULLIFIED BY NOT BEING ENFORCED
% FOR SO LONG.
% >> FROM OUR PERSPECTIVE, THE
% PLAINTIFF'S LAWSUIT IS
% UNPRECEDENTED IN WISCONSIN
% HISTORY.%THE PLAINTIFFS, THE
ATTORNEY
% GENERAL AND OTHER STATE
% OFFICIALS AND AGENCIES HAVE SUED
% DISTRICT ATTORNEYS, OTHER STATE
% OFFICERS, OVER WHAT AMOUNTS TO A
% DIFFERENCE OF OPINION AND THE
% PLAINTIFFS A OWN DESIRE TO KNOW
% WHAT THE LAW IS.
% >> THE PEOPLE NEED TO BE ABLE TO
% KNOW BEFORE THEY ACT WHAT IS AND
% IS NOT SUBJECT TO CRIMINAL
% SANCTION.%IT CANNOT BE THAT
WISCONSIN LAW
% TELLS THE WISCONSIN PUBLIC THAT
% THE SAME FACTUAL ACTS ARE BOTH
% LAWFUL AND ILLEGAL AT THE SAME E
% TIME.
% >> HERE TO UNPACK THIS
% COMPLICATED CASE, UW LAW SCHOOL
% PROFESSOR, THANKS VERY MUCH FOR
% BEING HERE.
% AS YOU LISTEN TO THESE ARGUMENTS
% IN COURT, DID ANYTHING SURPRISE
% YOU?
% >> THERE WERE NO MAJOR
% SURPRISES.%IT WAS A LENGTHY,
RIGOROUS
% ARGUMENT.
% THE JUDGE ASKED PROBING
% QUESTIONS OF BOTH SIDES.
% JUDGE AND ATTORNEYS WERE ALL
% VERY WELL PREPARED.
% IF THERE WAS A NOTABLE FEATURE
% OF THE CASE OR OF THE ARGUMENT,
% IT WAS JUST HOW MUCH UNCERTAINTY
% SURROUNDS WISCONSIN LAW RIGHT
% NOW.% THERE WERE NEARLY TWO
HOURS OF
% ARGUMENT ABOUT HOW THIS
% INTERLOCKING WEB OF STATUTES
% FITS TOGETHER OR DOESN'T, AND I
% THINK THAT SPEAKS TO THE LEVEL
% OF UNCERTAINTY THAT THE STATE
% FACES.%THERE ARE OTHER STATES
AROUND
% THE COUNTRY THAT HAVE SETTLING
% IN ONE WAY OR NEAR THE ISSUE OF
% ABORTION BUT WISCONSIN REMAINS
% IN LIMBO.
% YOU HEARD THE PHYSICIAN ATTORNEY
% SPEAK TO THAT SAYING THAT THE
% PHYSICIANS ARE NOT PERFORMING
% CARE THEY WERE TRAINED TO
% PROVIDE NOT BECAUSE THERE'S BEEN
% A COURT RULING BUT ACTUALLY
% BECAUSE THERE HASN'T BEEN ONE.
% >> GIVEN THE ARGUMENTS BEFORE
% THE COURT THIS WEEK, DID THEY
% RISE TO OUTRIGHT DISMISSING OF
% THIS LAWSUIT, IN YOUR MIND?
% >> DEFENDANT URMANSKI IS CORRECT
% THAT THIS DOCTRINE THAT'S CALLED
% IMPLIED REPEAL IS PRETTY
% DISFAVORED BY COURTS.
% THAT MEANS THAT COURTS WILL
% GENERALLY TRY TO RECONCILE AND
% HARMONIZE ALL THE PARTS OF A LAW
% AND GIVE EACH ONE MEANING, BUT
% THE PLAINTIFFS ARGUMENT IS THAT
% THAT CAN'T BE DONE HERE, AS YOU
% HEARD IN THE CLIP, THAT THESE
% ARE JUST IRRECONCILABLE.
% TO THE EXTENT THAT THE COURT
% FINDS IT TO BE A CLOSE CASE,
% THAT WOULD CUT IN FAVOR OF NOT
% DISMISSING THE CASE BECAUSE AT
% THIS STAGE OF THE LITIGATION,
% THE CASE IS TO BE DISMISSED ONLY
% IF THE LAW IS CLEAR-CUT AGAINST
% THE PLAINTIFFS.
% >> COUNTY JUDGE DISMISS THE CASE
% AGAINST THE DISTRICT ATTORNEYS
% AND NOT THE DOCTORS?
% >> THE DOCTORS ARE INTERVENING
% AS PLAINTIFFS.
% SO THE QUESTION THAT'S PENDING
% ABOUT THE PARTIES IS ABOUT
% WHETHER THE STATE PLAINTIFFS ARE
% ALSO INVOLVED ENOUGH IN THE
% PROVISION OF ABORTION THAT THEY
% HAVE LEGAL STANDING TO BE THERE,
% BUT THE DEFENDANTS WOULD REMAIN
% IN THE SUIT UNLESS THE MOTION IS
% GRANTED AND THE CASE CAN
% DISMISSED ON ITS MERITS.
% >> CAN TWO STATUTES CONFLICT, AS
% IN THIS CASE, ARGUABLY, ONE
% OLDER AND ONE MORE RECENT?
% >> THERE ARE, AND THAT'S A LOT
% OF WHAT THE PARTIES WERE
% DEBATING AT THE ORAL ARGUMENT,
% WHICH IS IS THIS SITUATION CLOSE
% ENOUGH TO THOSE CASES WHERE
% IMPLIED REPEAL HAS BEEN FOUND
% AND THAT'S SOMETHING THAT THE
% JUDGE WILL LIKELY BE SORTING OUT
% AS SHE PROCESSES THE BRIEFS.
% >> THE JUDGE SUGGESTED IN THIS
% CASE, I IN THE, THAT THE 1849
% LAW WAS FET I CRIED AND NOT
% ABORTION.%WHAT WOULD THAT ME
AN FOR LAWSUIT
% OR ABORTION LAW IN WISCONSIN?
% >> WHAT THE JUDGE AND THE
% PARTIES WERE REFERRING TO THERE
% WAS A 1994 WISCONSIN SUPREME
% COURT OPINION THAT REACHED THAT
% CONSTRUCTION OF A DIFFERENT
% SECTION OF THE SAME ABORTION
% LAW.
% SO IT LOOKED AT A RELATIVELY
% SIMILAR SITUATION, TRYING TO
% RECONCILE NEWER STATUTES WITH
% OLDER ONES, AND IT SAID THAT
% THAT EARLIER STATUTE WAS JUST
% LIMITED TO THIS FETICIDE.
% THE CASE IS NOT ON POINT BECAUSE
% IT WASN'T ABOUT THE SECTION OF
% THE STATUTE THAT'S AT ISSUE
% HERE, BUT THAT'S WHAT THE COURT
% AND THE PARTIES WERE REFERRING
% TO AND THE PLAINTIFFS' ARGUMENT
% IS THAT THAT IS APPROPRIATE FOR
% THE COURT TO FOLLOW IN THIS
% CASE.
% >> SO JUST HEARING YOU SPEAK,
% THIS IS SO INCREDIBLY
% COMPLICATED, AND AS YOU SAID AT
% THE BEGINNING, THESE AREN'T THE
% KINDS OF ISSUES THAT OTHER
% STATES ARE ADDRESSING AROUND
% ABORTION LAW.
% >> THAT'S CORRECT.
% THERE ARE A LOT OF OTHER STATES
% IN WHICH THE QUESTION THAT'S
% BEEN PRESENTED TO THE COURT IS
% ONE ABOUT A CONSTITUTIONAL RIGHT
% TO ABORTION.
% THIS CASE IS DIFFERENT BECAUSE
% IT'S ON THIS NARROWER AND MORE
% TECHNICAL ISSUE OF HOW THE
% STATUTE SHOULD BE CONSTRUED AND
% HOW ALL OF ITS PROVISIONS SHOULD
% BE WRITTEN TOGETHER.
% >> SO DID THIS HEARING PROVIDE
% CLUES AS TO LEGAL ACTORS GOING
% FORWARD?
% >> THERE WERE NO MAJOR NEW
% SIGNIFICANT DEVELOPMENTS, I
% THINK, AT THE HEARING.
% THE ONE NOTABLE FEATURE WAS
% THAT, ALTHOUGH THERE IS AN
% ARGUMENT IN THE CASE ABOUT
% DISUSE, WHICH IS THAT THE 1849
% PROVISION IS NO LONGER
% ENFORCEABLE BECAUSE OF A LONG
% PERIOD OF DISUSE, THAT WASN'T
% REALLY ADDRESSED AT THE HEARING.
% MORE OF THE FOCUS WAS ON THIS
% DOCTRINE OF IMPLIED REFEEL AND
% IF THE MOTION TO DISMISS IS NOT
% GRANTED, THEY'LL MOVE FORWARD
% WITH THAT FIRST.
% >> SO AS TO THAT DISUSE OF THE
% LAY, IS THAT A THING?
% HAS THAT BEEN THROWN OUT BEFORE
% BECAUSE OF THAT?
% >> IT'S A LEGAL CONCEPT THAT'S
% ROOTED IN IDEAS ABOUT FAIR
% NOTICE SO IF SOMETHING REALLY
% HASN'T BEEN ENFORCED FOR A LONG
% TIME, THEN PERHAPS IT WOULD BE
% UNJUST OR EVEN UNCONSTITUTIONAL
% TO JUST SORT OF REVIVE IT, BUT
% IT IS LIKE IMPLIED REPEAL.
% IT'S NOT A DOCTRINE THAT'S
% COMMONLY APPLIED ENTER SO IN
% TERMS OF COURT PROCESS AND THE
% TIME LINE HERE, WOULD IT BE YOUR
% EXPECTATION THAT THIS WILL GO TO
% THE STATE SUPREME COURT, AND IF
% SO, WILL DO SO AFTER THE NEWLY
% ELECTED LIBERAL JUSTICE
% PROTASIEWICZ IS SEATED?
% >> I THINK THE CASE WILL
% PROBABLY REACH THE WISCONSIN
% SUPREME COURT, BUT IT'S STILL AT
% A PRETTY EARLY STAGE.
% THERE ARE A NUMBER OF STEPS THAT
% STILL NEED TO BE GONE THROUGH AT
% THE LOWER COURTS SO IT PROBABLY
% WON'T REACH THE WISCONSIN
% SUPREME COURT IN THE VERY NEAR
% TERM.