why what this court did in state versus black was ultimately dicta when it talked about how
this couldn't be applied to a consensual abortion. It didn't need to go there. The court could
have just stopped its analysis and saying, yes, you can apply the statute under these
circumstances. But as soon as it went into talking about its applicability to a consensual
abortion, you're talking about a factual situation that wasn't in front of the court,
and that's a definition of dicta under this court's precedence.
Council, what a return to one of the arguments you made earlier about Magrisans. I understand
that the point to you to be making is that this court has already authoritatively construed
940 or 4 sub 1 to be a statute that prescribes abortion. Correct?
It has certainly upheld applications of the statute to consensual abortions and defined
the elements of the statute in that process in a way that applies to consensual abortions.
When black said it was only applying to 2A, it was not making any effort to disturb anything
with 940 or 4.1, despite requests to do so in that case, correct?
That's correct, just a second one. So it would seem to me that if you were to take black's
construction, even at face value on 2A, you would have to overrule cases and make some
argument that a text that basically every case in Wisconsin up until black had looked
at this language. Well, every case in construing sub 1, made clear it was about abortion up
until then with literally dozens, I guess, or 8 dozen or so or more, right?
Yeah, that's correct, Justice Hagridone. I think that was the point we made to the circuit
court, which was actually applying the wrong precedent.
All your prior response rested in part an assertion of dicta. Are you aware that this
court, at least as we speak today, says that indicates that our opinions don't have dicta?
Justice Bradley, I'm aware that this court has said that in the context of the Court
of Appeals applying this court's decisions. I think Justice Hagridone, Justice Dalit,
or Wisconsin Justice Initiative concurrence takes a deep dive into this issue, and I believe
Justice Hagridone, you make the point that nothing in Zardar says this court can't treat
its prior opinions as dicta. Let me point out to you that that's in
a concurrence. Justice Bradley, I'm aware it is a concurrence, but I also, when I read
the Zardar decision, I don't see anything in the Zardar decision that says this court,
one of the first things I learned when I got on this court is 1, 2, 3, 4, right?
How to count to 4 to get to a majority. And thus far, that is the majority of the court.
Is that correct regarding dicta? If you know the answer to that.
I don't think that's the majority of the court, Justice Bradley. I think Zardar says the
Court of Appeals can't.
But what case can you point to that says what you're asserting vis-a-vis that we indicate
that, yes, there is dicta in our opinions?
Well I think there was a long line of precedence from this court recognizing the role that
dicta played, I think.
Currently, currently. We may have been inconsistent in the 1920s and 30s and 40s, but at least
since I've been on the court, that's been the position of the majority opinions of the
court.
I think it would be fair to say that, I think Justice Hagridone points this out in his concurrence
that this court has stopped talking in terms of dicta. I would agree with that, but I don't
think that's what this court held in Zardar. I think this court held in Zardar that lower
course, the Court of Appeals, can't treat statements from this court in its own opinions
as dicta.
You're argument about black is not predominantly dicta. I said it was. Well, number one, it
doesn't extend to sub one, and this court has already held sub one applies to abortions.
Number two, the statutes pretty clearly do apply to abortion, and so number three, it
was wrong.
Number four, an alternative that was just dicta anyway. That's your alternative arguments
in the way you're playing that out, not your primary argument, correct?
Yeah, Justice Hagridone, I think there's probably four or five points with respect to black.
I think you hit on most of them. One, it's not interpreting 940-04 sub one. Two, we think
it's discussion of the applicability of 940-04 sub two, sub a to a consensual abortion was
dicta.
Three, we think that discussion was unsound in principle. In the Waukesha County versus
MAC case, this court recently decided, I believe earlier this year, this court said
a decision is unsound in principle. If it does not undertake a comprehensive examination
of a statute or overlooks relevant subsections, I mean, frankly, I think state versus black
was pretty explicit about the fact that it wasn't undertaking a comprehensive examination
of the statute and wasn't looking at all the relevant subsections of the statute.
And I guess the last point I would like to make with respect to state versus black is
even if you take all of that away, what does state versus black say about conflict and
application of 940-04 sub two, sub a to a pre viability abortion? It doesn't say applying
940-04 sub two, sub a to a pre viability abortion would conflict with subsequent statutes.
It doesn't say that. It says the only thing holding back an application of 940-04 sub
two, sub a to a pre viability abortion is Roe. And Roe's been overruled. So I would say
even under state versus black, there's an indication that 940-04 sub two, sub a could
be applied to pre viability abortions. Why couldn't 940-04 sub one be applied to pre viability?
Unlike other states, Wisconsin did not pass anything, any kind of trigger, what are we
called trigger laws? Is that correct? That's correct. So, and they could have. The legislature
absolutely in passing all the statutes that have passed could have indicated that should
Roe be overturned, these statutes are no longer in effect. I don't think it was necessary,
Justice Dalit, and here I would refer the court to- Well, other states did and have, and certainly
have since jobs was passed, came along, correct? Justice Dalit, I'm sure other states have passed
trigger laws. I'm not familiar with what those other states had on the books from their prior
statutes at the time. Okay, and how about even West Virginia, which actually the court held
that all of the statutes have changed the law from what it initially was, that that is a very
similar statutory scheme of comprehensive statutes that allowed for abortion since Roe was, was
the law. They court upheld all of those and said to the legislature, if you want to change it,
you can, and they did. So, the legislature still has the ability if they wanted to do something
to do it. But again, you're still asking us to ignore an entire body of law that has been passed
that doesn't say we're only passing this because of Roe. I mean, Roe did not require 20 weeks.
I have a hard time with your argument specifically with respect to 253.107. Roe talks about viability.
20 weeks is pre-viability, and our legislature decided, fairly recently, at least in the scheme
of these regulations, that an abortion may not be performed after 20 weeks unless the mother is
undergoing a medical emergency. That's not based on Roe. That is the legislative policy that was
chosen by this state's legislature. Justice Dalit, I would say that statute was passed while Roe and
his progeny, including Planned Parenthood versus Casey, which actually changed the Roe standard
a little bit, were the governing law of the land. But I think the point remains. So, are you saying
that any law regarding abortion, that the Wisconsin state legislature passed, after Roe was decided
in 1973, and up until Dobbs was decided, that all of that body of law, all of those statutes
regarding abortion, just go to the dust pile? No, that's not what we're saying.
It is what you're saying, because you're saying that if they were passed after Roe,
and if they were passed with Roe in mind, then they mean something different today
than they meant before Dobbs. No, it means those statutes had a different purpose,
which is one of the things this court looked at in state versus cranberry. We're just making
the same argument. What's their purpose now? What was the purpose of 253.107? Can you tell us,
and since when do we actually look at the intent of the legislature, and try to decide what one
legislature wanted versus another, but tell me, what's the purpose of 253.107, a 20-week ban
enacted in 2015? I would say the purpose of that was to regulate abortion within the
strictures that the United States Supreme Court had put into place after Roe up through Dobbs,
and the reality of the situation is, under this court's precedent, state versus cranberry,
you don't have a conflict between two statutes unless it is impossible to comply with both
statutes. Let's go through some examples of how it's impossible to reconcile these, okay?
Let's look at 940.04 sub-1. It prohibits abortion from the time of conception until born alive, yes?
Correct. Okay. How about 940.15 sub-2? One does that prohibit abortion?
940.15 sub-2, I believe that's post-fiability? Yes. So, if you are a medical provider,
what in the world are you supposed to do with that? Those statutes are in conflict.
Respectfully, just as Kroski, they're not. They're not in conflict any more than an included
offense is in conflict with another offense that establishes additional elements for a crime.
I fear you don't understand how lesser included offenses work. Let me ask you a different example.
How about 940.04 sub-2 prohibits abortion of an on-board quick child, right? And I'm not exactly
sure what a quick child means, but whatever. That's what the statute from 1849,
unsurprisingly, because we know a lot more about medicine now than we do then,
but it talks about a quick child. 940.15 sub-1 defines viability as that stage of fetal
development, one in the medical judgment of the attending physician based on the particular
facts of the case before him or her. There's a reasonable likelihood of sustained survival
of the fetus outside the womb. Are those different? Is a quick child the same or is it different
than the definition I just gave you of viability? I think it's probably fair to say that it's
different. I believe quick child was defined by this court in state versus Tim's, Foster versus
State, as the moment at which you feel the movement of the fetus in the womb, which is roughly four
to five months. Now, is it what if you don't feel it at four or five months? What if I didn't
feel it at four or five months? What if someone goes into the emergency room and they're not
feeling it at four or five months? Well, Justice Krowski, I think you can think of any number of
examples, but what you're really hinting at here is that it's a vague statute, but vagueness doesn't
require mathematical precision. That's very clear from this court's precedence. Mathematical
precision, are you kidding me? We're trying to figure out if medical providers here are going to be
able to save women's lives. So yeah, we better get this right. Justice Krowski, hold on.
What I'm asking you is what is a medical provider supposed to do when they have to figure out
whether or not it's a quick child, whatever that means, or they've reached the viability
definition in 940-15 sub one. I don't understand from your argument. Like seriously, what are they
to do? Justice Krowski, a medical provider who conforms his or her conduct to 940-04 sub one,
doesn't have to answer those questions. And that's why this is not a question of a
this statute being unconstitutionally vague. And I understand what you're hinting at right here is
sort of the vagueness of the statute, but I guess on that I'd make a couple of points. One, this is
a facial challenge to the statute and it's being brought by a doctor who acknowledges that she
performs elective abortions. Under this court's precedence, state versus wood, you don't even get
to these hypothetical examples unless the statute as applied to the particular physician
would be unconstitutionally vague. And the fact of the matter is that all of the vagueness arguments
that have been raised regarding the definition of quick or whether or not something is necessary
to save the life of the child or those types of issues, they don't apply if you're talking about
a consensual elective abortion for an otherwise healthy mother. And on that I would make two points.
This court is very clear that when you're talking about a facial vagueness challenge
under state the state standard, now there's a difference between the state and the federal
standard that's teased out a little bit in the briefs. But under the state standard, if there's
any possible application of the statute that would be constitutional, it passes the facial
challenge. I'm not talking about the facial challenge or vagueness. I am talking about the
fact that these two statutes are irreconcilable and that under your interpretation, we are
leaving the decision up to hospital ethicists and hospital attorneys instead of medical providers.
And that concerns me greatly. And Justice Groski, I just don't think the statute's
irreconcilable. I think if this court applies state versus grandberry, these statutes aren't
irreconcilable. All you have to worry about is whether or not a physician can comply with both
statutes. 940-15 doesn't say a physician has to perform abortions. It doesn't. And the fact of
the matter is 940-04 sub-1, if you conform your conduct to 940-04 sub-1, you will not violate
940-15. You will not violate the 20-week ban. You will not violate the partial birth abortion
ban. You cannot be criminally prosecuted in the state of Wisconsin if you conform your conduct to
940-04 sub-1. And because there is a fact, there is a way to comply with all of those statutes,
they don't conflict. That state versus grandberry, this court has been very clear.
So, with respect to the feed-aside component of this statute, are you also trying to tell us
that that has not been impliedly repealed? Which portion, Justice Dowd, I apologize.
But if this applies to feed-aside, which you're saying it applies to feed-aside and abortion,
are you saying to us today that 940-04 is the feed-aside statute that is in effect on the box
right now if someone were to commit feed-aside? I do know the legislature passed subsequent
feed-aside statutes. I think the question of the effect of those subsequent feed-aside
statutes on this particular statute and its application to feed-aside is not an issue that's
been briefed. Okay. So, to be clear, just as the legislature has passed numerous statutes since
1849, with respect to the abortion, what you say is the abortion portion of this statute,
with respect to feed-aside, almost every single homicide statute, first degree intentional,
first degree reckless, second degree intentional, second degree reckless, and on and on has
specifically added a provision with respect to feed-aside. So, is 940-04, I mean, this is still
on the books, like sub-1, we're talking about 940-04 sub-1, is that still a feed-aside statute,
which is a class H felony, which is a totally different penalty than much of the rest of that's
been passed since 1849? Like, what penalty should we impose for someone who commits feed-aside?
Justice Dallet, I think it is very clear that prosecutors have discretion to charge multiple
crimes when multiple statutes might apply. Okay, it's the same crime, it's a feed-aside.
So, which one would apply? 940-04 that you tell us is good law from 1849, or whatever most recent
statute applies, and I'm not talking about lesser included offenses here. And, Justice Dallet,
I don't have the subsequent feed-aside statutes in front of me. All I can tell you about the
subsequent feed-aside statutes is that they lumped 940-04 into a group of statutes that apply to
induced abortions. So, even when the legislature passed those subsequent feed-aside statutes,
it referred to 940-04 as a statute that would be a statute that has some application to
induce abortions. Now, can we define, divine from that legislative intent, that the legislature
understood 940-04 to be just an abortion statute as opposed to an abortion and a feed-aside statute?
I don't know, but I don't know that whether or not those subsequent feed-aside statutes
have impliedly repealed the application of 940-04 to feed-aside as anything to do with
whether or not 940-04 can apply to a consensual abortion.
Well, doesn't it have something to do with the argument that's being made on the other side about
what implied repeal is? You spend a lot of time talking about conflict, and you do acknowledge
that there is a whole other way that the legislature does things, and they do it all the time,
and they do it all the time in criminal law, especially where they pass later statutes
that have different penalties that do different things about the same subject matter,
and we use those later statutes because we understand that they've impliedly repealed the earlier
one. So, I do think this applies to the argument of implied repeal.
And Justice Dalit, I think the legal principle you're making is that you can find an implied
repeal when a later statute covers the whole subject and is plainly intended to be a substitute.
Now, our position is nothing in those later statutes indicates a plain intent to be a substitute for
940-04. Why do we know this? Well, we know in 940-04, when they passed 940-15, and we know that
an early draft of the bill would have expressly repealed 940-04, and they took it out.
Well, if you're going to do that, it also had a provision taking out something saying,
this is not an implied repeal, and they took that out too.
So, your argument on that one is not so strong.
I would disagree, Justice Dalit, because when we're talking about implied repeal,
that's a heavy burden for the challenger claiming that an implied repeal has occurred.
The tie goes to the runner here. Well, the language was in it both.
It's hard for us to look at what legislatures do and don't do when they don't pass.
So, what else do you have? Well, and I would also say that many of the additional statutes
on which you rely have the language talking about how it's not intended to make lawful
an abortion that is otherwise unlawful. Where is that language?
That language is in, I believe, 253-10. Which was passed at the same time as 940-15,
so wouldn't that refer to 940-15? I don't think that's true. I think what the
legislature is saying there is in a conflict between this statute and a statute that makes
abortion lawful, or excuse me, unlawful, you shouldn't be relying on this statute which just
talks about things like informed consent, things like that to make lawful something that is otherwise
unlawful. This is the exact same language that appeared in the statutes of the Arizona Supreme
Court recently said it didn't constitute an implied repeal in large part because of that language.
I mean, it actually says that, I mean, there's no other way to read it other than 944-4
must apply to abortions or else that wouldn't make any sense because it actually cites that
statute, correct? And that language doesn't explicitly state that it should not be construed
to say to otherwise permit, in other words, impermissible abortion in sites 944-4 is one of
those types of statutes? I don't think it specifically identifies 940-04 in the statute
during Justice Haggard's ordinance. All right, thank you for the correct.
Okay, so we leave hanging the fact that implied, well, feet aside, you're saying that is not
impliedly repealed despite having all the statutes that impliedly repeal it.
Justice Dallin, I'm not giving you an answer on that. I'm not giving you an answer on that question
because I, frankly, sitting here today with an issue that hasn't been briefed, I don't have
an answer for you. That's not an issue before the court.
Page 39 of the brief of Attorney General Cowell has a response, it seems to me,
with regard to new and subsequent legislation in essence, and you don't necessarily have to
have it in front of you if you wish you can. Their punchline is this,
that the legislature created new laws with an exception but left already listed statutes
unaffected by the new exception, further supports not detracts from legislative acquiescence.
You're talking about the legislative acquiescence argument?
I'm talking about what the enactment of subsequent legislation says about the statute before us
today. If I understand that portion of the Attorney General's brief correctly,
I believe they were making an argument that after state versus black, the legislature passed
subsequent laws that didn't affect state versus black's interpretation, and my time has expired.
Can I continue with a brief answer? I believe their argument they were making was that the
legislature acquiesced in the state versus black interpretation, and I guess I would just make
three brief comments on that. One, since state versus black didn't interpret 940-04-1, I think
it's a real stretch to say they acquiesced to an interpretation of 940-04-1, and two, this court
has been very clear that if an interpretation is unsound in principle, legislative acquiescence
can't be relied upon to force that type of interpretation.
Thank you. I'll let them respond to that argument.
Madam Chief Justice, and may it please the court.
The question is whether 940-04-1 is enforceable so as to ban all abortion in Wisconsin except
those necessary to save the pregnant woman's life. The reasons underlying why the answer to
this question is a resounding no. Go to the very foundation of the rule of law in Wisconsin.
The rule of law requires the government of Wisconsin through our written laws to provide
clarity to the people as to what is and is not subject to criminal punishment so that the people
may know before they act, and among other things, the state of Wisconsin cannot have two laws on
the same subject with the same scope that provide directly conflicting answers as to when conduct
is and is not a felony. So your friend on the other side says, don't worry about that.
This is just an application of the way we use lesser included offenses,
and he keeps going back to Granbury. Can you respond to that argument?
Absolutely. So this is not at all a circumstance of lesser included offenses.
Lesser included offenses. We're talking about conduct that is illegal under both statutes
where the greater requires proof of an element that the lesser does not.
This is not that circumstance, and Granbury is dispositively distinguishable because this
court's decision in Granbury rested on its conclusion that the two statutes at issue
that had overlapping factual subject matter served distinct purposes such that it was
not only possible to comply with both but necessary. And the reason why that's different than what
we have here is because 940-04 sub-1 and 940-15 sub-2 would be doing the exact same work
if both applied to abortion. They have the same subject matter, they would have the same scope.
Both would provide the gestational point after which abortion is criminally prohibited in Wisconsin,
and they would provide exceptions after that point, but they would provide directly conflicting
answers as to both questions. I'm not so sure that under their argument 940-15 does any work.
You're exactly right, Your Honor. And that's why the discussion of Granbury,
the discussion of whether it's possible to comply with both is incorrect. The possibility question
asks whether it's possible to comply with both statutes with both statutes standing in force
as this court said in Dairyland, i.e. for both statutes to actually be doing work as statutes.
You know, I think that sometimes we can get a little caught up in like a real formalist
make, you know, if these statutes were presented to a person without any context,
we might think, huh, it doesn't make a lot of sense, right? Why would you have a statute that
prohibits all abortions, you know, except for the life of the mother, and why would you have a
statute that only prohibits abortions after 20 weeks? But it just seems a little odd. We all
know what happened here. We had a law that the people enacted that prohibited abortions,
and everybody understood this was about abortion. We have case upon case upon case,
confirming this was about abortion. The language prohibiting the intentional destruction of unborn
life obviously applies to abortion. And then the Supreme Court creates a new right that had not
been recognized before, overruled the abortion laws of nearly every state in the country,
and now has said we made a mistake. We got it wrong. In during that time states like Wisconsin
passed all kinds of laws to do whatever the Supreme Court would let them do,
which was a bit of a shifting sand because the Supreme Court had a standard, a new burden,
that had no real clarity about it. And first it was trimesters, and then it was viability,
and, you know, what things you could do or not do is left up in the air. So we all know what
happened. It's not like we need to put blinders on and, you know, pretend that, you know, we got
these things in a vacuum. So the question for us is simply like, does a law that was unconstitutional
at one point after 100-plus years of enforcement somehow get written off the books because the
legislature tried to do whatever the courts would let it do during the period of the time that the
law was deemed unenforceable? So it strikes me that some of this formalist, oh, we've got
these things that conflict. Again, we all know what happened. So unless there's some conflict,
the laws were not reversed off the books. I don't know why it's a matter of straight,
just reasonable statutory interpretation. The law's still there. It's still there. The judiciary
doesn't get to edit laws. The judiciary doesn't get to rewrite them. We didn't delete it. We
prevented its enforcement. Now it's still there. How can we just say, oh, we can't enforce it anymore
simply because the legislature was doing other things when it was unenforceable?
So I have a number of thoughts and response. So first and foremost, all what we're doing here
is we're confronted with circumstance in Wisconsin law where we have directly conflicting answers.
And so there, now it's a question of implied repeal. And there's nothing in the text of the
Wisconsin statutes that would explain why would you do the opposite of implied repeal, which is to say
that under standard rules of implied repeal, when there is an irreconcilable conflict,
or we have the second form of implied repeal at issue here as well, that there's not the
standard implied repeal rule is it's the earlier law that falls. And there's nothing in the text
of the Wisconsin statutes, the text being what governs the conduct of the people and actually
applies to the people that would say disregard all of that. And instead, in the event of Roe being
overturned, go back to 9.40.04. And we know state legislatures knew how to do this because as
discussed, a number of states enacted trigger bans. Wisconsin did not. And to push back against
Ermansky's reliance on the Arizona Supreme Court case, that case is dispositively distinguishable
for multiple reasons. But most significantly, because in that case, the modern law contained
an express provision that said that the modern law cannot be read to repeal implicitly or otherwise
the archaic ban that in combination with a statute in Arizona that required the construction of
any provision to provide as much protection to the unborn child as possible with the only
limiting factor being the United States Constitution to the Arizona Supreme Court created a trigger
ban. That is nowhere to be found in the state of Wisconsin. There's nothing in the text of these
statutes that say in the event that Roe is overturned, we somehow go back to the old law and throw out
all of the new ones. The normal law, the normal rule though is that if a statute is unenforceable,
and then the judicial rule would lift that lack of enforceability, that rule would go into effect.
I mean, that happens all the time, not necessarily for the duration that Roe did, but that Roe
occasioned, but I mean, it's not unusual to have a statute that is unable to be enforced for a
period of time. It doesn't get deleted. Well, you're correct that a court rendering a statute
unenforceable has not scratched it out of the statute books, but where that decision then is
overturned, we're just back to statutory construction and statutory construction requires in this
circumstance implied repeal, which means that it is the earlier law that falls not the later.
But your argument is in giving effect to the legislature maintaining the pre-Rough abortion
law in the books. Can you say that one more time? You're, well, I'll put it in the form of a question.
I don't think your argument is giving effect to the legislature maintaining the pre-Rough
law, the abortion ban on the books. Oh, I disagree with that. The fact that the
legislature didn't expressly repeal 940-04, right, we don't need to consult legislative history to
tell us that. We can see that it's still listed in the statute books. But what the legislature did
do is enact a number of modern laws, most notably 940-15, that sits in the exact same spot,
does the exact same work that 940-04 would do. And as your honor knows very well, when there is
conflict into the law and lack of clarity as to what is and is not subject to criminal sanction,
we have to provide that clarity. The court has to provide that clarity. And the way that it does
that is by recognizing that the earlier law has been impliedly repealed.
But your argument is asking us basically to put blinders on. I think this was the point that
Justice Hagedorn would explore with you. It was not as if the people of Wisconsin decided
of their own accord to enact this post-Rough regulatory regime, changing the abortion ban
to something else, right? Are you asking us to ignore the fact that the United States Supreme
Court forced those regulatory regimes on people all over the country? I'm asking the court to read
the text of the statutes based on the text. And to see if there is a way to reconcile these
statutes based on the text, this court already said recognized in black, there is not. And so
it looked for any way that it could harmonize the statutes and their recognized feet aside.
And just to push back a little further on that, are we really going to say, for example,
that Wisconsin statute that prohibits racial segregation in schools is contingent on the
existence of round B board? Are we really going to say that Wisconsin's entire statutory structure
for the provision of indigent criminal defense is contingent on the existence of those decisions?
No, that's not how we interpret statutes. And so now we are back in a position where we have to
look at the statutes that govern the conduct of the people of Wisconsin and what we have
are directly conflicting laws. And we know this again, because 940-15-sub-2 would be doing
absolutely no work as a statute, no work none 100% superfluous if 940-04-sub-1 were also enforceable
as to abortion. Are you asking us to overturn black, which expressly disclaimed your entire
argument about implied repeal with respect to these statutes? No, no, we're not. Black, in fact,
resolves this entire case because the language of black that this court interpreted there
is materially indistinguishable. And this court was doing the exact right thing in black, which
is it looked at two statutes that would appear to conflict. And it asked, instead of concluding
that the older one had to be fully impliedly repealed, it said, hey, based on the text,
can this statute be doing any work? And it said that language that prohibits the intentional
destruction of an unborn quick child by anyone other than the mother could be doing work as a
feed-aside statute. And so we think that decision was correct and he has not presented any reason
for this court to distinguish it or overturn it. But if you disagree, we're back to the same conclusion,
which is that 940-04 has been impliedly repealed. On page 26 of your brief, you talk about black
and you write this, in reaching its holding, this court in black stressed that the reason 940-04-2A
could not be understood to apply to, this is in quotes, a physician performing a consensual
abortion after viability after quotes was that such application, and again in quotes, would be
inconsistent with the newer section 940-15, which limits such action and establishes penalties
for it. And then you cite black at 646. Is the court there talking about implied repeal without
talking about implied repeal? Yes, that's, so what exactly what this court was doing was saying,
okay, we have two statutes, 940-04-2A there, and 940-15, that would, that appear to conflict. And so
we as the court have a responsibility to determine whether there's any way the statutory language
of the older statute, which would otherwise be impliedly repealed, can still do work. And when
you look at the text of 940-04, it makes sense that it could apply to feed-aside. And if we agree
with your argument regarding reply to appeal, would 940-04 still be in effect as a feed-aside
statute? It could be, and the reason that it could be is because when we talk about what constitutes
actual permissible overlapping criminal statutes, it's where the conduct is illegal under all of
the statute, but you might have different factual circumstances. And so when we look at that, right,
just to use an example, someone goes into a bank and robs it at gunpoint. That single factual act
is illegal under multiple criminal laws, or consider the facts of Batchelder, which is the
seminal overlapping criminal statute case. There, two federal laws prohibited felons from receiving
firearms, but there were different penalties imposed. In both of those circumstances, the public has
noticed as to what is and is not subject to criminal sanction, that would not be the same
if 940-04 and 940-15 both applied to abortion. And to quote from Radzenhauer, which is the
precursor case to Batchelder, implied repeal occurs if necessary to make the later enacted law
work. 940-15 sub-2 would be doing no work at all. There is no circumstance where a physician could
be performing a non-life-saving abortion pre-viability or post to protect the woman's health that wouldn't
be a felony under 940-04. It feels like it's a little bit of the tail wagging the dog on this.
You know, you have a policy choice but a legislature that says you can't do A, B, C, and D. And a court
comes in and says, we're not going to let you enforce the prohibition against A. And the legislature
comes back or any of it. And the legislature says, okay, fine, we're going to prohibit B, C, and D.
And then the court comes and says, okay, that's fine. You can do A, B, and C if you want. And it's
almost like because the legislature was working within a judicial regime that prohibited it from
doing everything that it had passed in a previous statute, that you're now going to use that to say
it overrode what it had previously already decided and still left on the books quite intentionally.
So, again, this isn't a situation where this comes out of nowhere that the legislature was
prohibiting all that it was permitted to, to, uh, where as much as it could in many situations
under, um, the Supreme Court shifting standards during the Roe Cayce time frame. So I don't
understand why you would say just because the legislature did everything a court allowed it to
do that now that is the only law that it somehow repealed everything intentionally left on the
books before. So your honor's question, I think, is, is incorporating a lot of guesswork and
assumption about why the legislature at the state of Wisconsin did what it did. And this isn't to
say that we don't know the history of what was happening, right, and the existence of Roe,
but it is to say that when we construe statutes and whether or not they conflict,
we don't go to just guesswork about what the legislature may have intended. We interpret the
statutes of the text that the legislature already wrote, and you will not find in the text of
940-15, you will not find in the text of any of the other modern statutes anything that makes clear
that these statutes exist only as long as Roe exists. And we know that legislatures knew how
to do that. And so, I think it's guesswork to suggest that the legislature addressing parental
consent laws using the word viability, which the court in Cayce announced and brought up
20-week bans, which were pretty, I mean, this is not, we all knew what was happening, and this is not,
I don't, we, it's sort of like saying the public health laws, which arose on the Spanish flu
of 1918, we can forget that they were about the Spanish flu, like we all know what happened,
it's okay, we can, we can, I mean, we're not speculating here, and the legislature was working within
a framework that had a bunch of shifting sands about viability, about date limits, I mean,
that's what it was doing, we all know that. But your honours question presumes that the only
reason why the legislature of Wisconsin was doing that was because of those restrictions,
as opposed to also the people of the state of Wisconsin understanding and enacting through their,
But your argument is that the legislature, your speculant, the legislature,
actually intended to override every single other, the law that was on the books before,
and that doesn't seem to make any sense in light of what we absolutely know for sure
about the regime. Well, so, so, Ermansky's argument is that the legislatures of the state
of Wisconsin, right, we're doing all that work for only one reason, and they would never have
done it otherwise, and so we're, if we're going to guess about which is which, then we're just
guessing, and the implied repeal doctrine, clarity in the law, notice, all say that it's the earlier
law that must fall, but if your honours, and we don't think there is a need to consult that
legislative history, but if your honours want to, if you think that there is, that further supports
our argument, because the best that Ermansky can offer you is that we didn't expressly repeal 9-40-04,
again, we know that. What you'll find in the legislative history, in addition to what we cite
in our brief that reflects that Wisconsin expressly considered, including a provision that said that
9-40-15 could not be read to not, to impliedly repeal 9-40-04, but did not, is piece after piece,
after piece of legislative history, reflecting that 9-40-15 was absolutely intended to be a
replacement for 9-40-04. An example is at 657 in Black, this court discusses memo number 22
from the 1985 special committee, and of course it was intended to be a replacement,
because the statutes are doing the exact same work, but they provide directly opposite answers.
And just to briefly respond, also you are presenting the repeal by implication
doctrine as if it's something that has good grounding in Wisconsin cases, it doesn't. You
acknowledge that we have expressed as a court, going back decades upon decades, that the doctrine
is disfavored, and only in very limited circumstances would it be applied. And you know, you keep
talking about there's a conflict between the statutes, but I think your friend on the other
side has laid out quite clearly how it is possible to comply with both. We also have numerous cases
saying if you can comply with both statutes that there isn't a conflict, right?
You can't comply with both, because 9-40-15-2 would be doing no work, and so the question of
possibility to comply with both asks whether both is doing work as a statute. But to your
honours point about the disfavoring of implied repeal, this court in Christensen as an example
has recognized that there's an even more important policy, and that's one that I know your honour
understands full well, and that is the importance of providing clarity in the law where there's
any doubt to the people so they can know what is and is not subject to criminal sanction.
And I would just stress one other point about the possibility. Ermansky tries to impart the
impossibility standard of whether it's possible to comply with both from the first form of implied
repeal onto the second, but that's not what the second form of implied repeal asks. The second
form of implied repeal asks whether the legislature, and I see my time has expired. I'm going to finish.
Thank you, whether the legislature has enacted a new comprehensive regime that is fundamentally
at odds with the law banning the regulated behaviour, and so as the federal court explained in the
Bentley case we cite, under the second form, even if the terms of the old law and new regime are
not expressly repugnant, the later act will operate as a repeal if the later act covers the
whole subject of the first and embraces new provisions plainly showing that it was intended
as a substitute, and that is also what has happened here in Wisconsin. Thank you.
Thank you.
Madam Chief Justice, and may it please the cart?
I am tired. I want to jump right in, and that's because I wasn't able to adequately get my question
to attorney juris. I want to talk to you a little bit about the implied repeal, and maybe you can
help me understand it a little better. My belief was that if we embrace implied repeal here,
black has to be overturned. Can you specifically tell me whether you agree or disagree with that,
and why? I agree with what Justice Karoski hinted at, is that implicit in the black analysis was
some type of implied repeal. This court in black, considered what work 9-40-04 was doing in
light of 9-40-15, that seems an awful like an applied repeal analysis. So I think as we
explained in our brief, we think there are a few different paths to get us to the place where
this court affirms the circuit court decision. My understanding, I think you like the – and
correct me if I'm wrong – I think you like the implied repeal argument better, correct?
I think the implied repeal argument is more intellectually sound. I think that – tell me why you think
that. Has discussed by my colleague, Attorney Juris, we do need to look at this old statute 9-40-04
and when a legislature creates a new statute, and it was not required to create a new statute.
Neither Roe nor Casey nor any other Supreme Court decision said, state legislators, you need to
take these laws off your book and you have to go write new statutes. Instead, more than a decade
after Roe was decided, the Wisconsin legislature put together a study committee to examine
pregnancy options and they produced 9-40-15. So now 9-40-15 and other statutes were created
that discuss under what circumstances abortions could be lawfully provided in Wisconsin and when
they were unlawful. So that can no longer be reconciled against 9-40-04, which was a virtual ban
on all abortions and all circumstances. And then following 9-40-15, in the last 40 years,
the legislature has passed numerous other laws that affect abortions, including when minors can
obtain an abortion under a judicial bypass system when they cannot get parental consent.
When medication abortions can be provided to patients. So the entire field of discussion
about abortion has been replaced. We're not in unlawful conduct. We're in regulated conduct.
That's why I think an implied repeal argument more fully addresses
the basis for this court. And I also think as we discussed, there are constitutional concerns
under void for vagueness and due process that our clients or physicians think should be addressed
as well. Thank you. Go ahead. Council, Black says,
further, when the legislature enacted 9-40-15, it did not repeal 9-40-04-2A.
Instead, both 9-40-04-2A and 9-40-15 remain the law. Nothing persuades us that the legislature
intended to impliedly repeal. 9-40-04-2A, when it enacted 9-40-15, implied repeal of statutes
by later enactments is not favored in statutory construction. So Black held, and that was necessary
to its holding, that implied repeal did not occur. Could you square that for me? I mean,
think if you accept replied repeal, I think, to Justice Press say it's this question,
you would have to overrule Black on that ground. Would you not?
And then you should overrule Black on that ground. Say that again. And then you should,
this court should overrule Black to the extent it's saying otherwise.
So, and if we adopt Black, we have to overrule McReasons because McReasons
authoritatively interprets 9-40-04-1. So it seems to me under either argument,
you need to overturn some cases if you're going to accept your position. Is that correct?
Yes, because the legislature has spoken and they've laid out a myriad of statutes
that govern when abortion can be provided when women in this state can obtain awful abortions.
Is it possible though, I mean, look at the date. Black was in 1994. At that time, there wasn't
this entire comprehensive scheme that has been since enacted. And could it be that the language
of Black that is an implied repeal type language? Now, when looking at that and looking at today
and looking at the framework, that the court could reach a different conclusion without having to
overturn Black? Yes. And I think we're not looking at just one statute or two statutes that were
in conflict with 9-40-04. But again, a whole comprehensive scheme of abortion statute since 1994.
And indeed in Black, there was no reason to look at 9-40-15 other than to think of it in some kind
of implied repeal setting. But that was 19, what did I say, 1994 versus now and versus the entire
structure that's been laid out since that time. Is that how we could possibly reconcile those
concepts together? Yes. And then I think we can look at what the legislature has or has not done
since Black. They did not statutorily over-roll Black. They didn't say, hey, court, you got it
wrong. We don't think this is a FEDA side statute. And now we're going to put in a trigger ban.
We were going to put in a trigger law that says that if the U.S. support ever reverses row,
we actually do want 9-40-04 to apply to consensual abortions again. That didn't happen. And there
was discussion about what West Virginia did. And I think that's a very good example of a state
with a similar abortion history to Wisconsin. But the legislature there did not acquiesce.
Rather, it has taken numerous affirmative steps, post-dobs, to pass a new abortion ban passed
in part on a court's finding of the implied repeal of the 19th century law. So they had a
pre-row law that remained on the books since the 19th century. It was found unconstitutional
shortly after Roe was decided, but it was not repealed. Then in July of 2022, so shortly after
DABs, providers secured an injunction barring enforcement of the old ban based in part on
the implied repeal doctrine. In granting the injunction, the court found the providers were
likely to prevail on their implied repeal argument based on the legislature's passage of
numerous laws governing abortion care. So again, very similar to Wisconsin. Just a few months later,
the West Virginia legislature passed a near total ban. In 2023, West Virginia also enacted a new
trigger ban, establishing that if the state's 2022 total ban was ever determined to be unconstitutional.
The state's 20-week ban, disability reason ban, informed consent, and parental notification
requirements would all take effect again. And I think this is important to think about.
When the U.S. Supreme Court issued the DABs decision, Justice Alito made clear that they were
sending the decision back to the states and state legislators. State legislative bodies
could make these decisions. And by sending it back to the state, it allows women on both sides
of the abortion issue to seek to affect the legislative process by influencing public opinion,
lobbying legislators, voting, and running for office. Council, you're disagreeing then with
the Attorney General's position. As I read the Attorney General's brief, it was doubling down
on black as their primary argument. Then they had an alternative argument of impliedly repeal.
So you're standing here today and saying the doubling down on black done by the Attorney General
is wrong. I think the circuit court was correct in applying state versus black. This is a decision
of this court. It couldn't take your answer. The answer to my question. Yes.
I think these are two paths to get us to the same right answer. That either black versus
controls and using the court's analysis in state versus black, the same reasons that
subsection two, the speed aside, should apply to sub one. Alternatively, if you use a
more straightforward implied repeal analysis, which makes sense to me personally, then we
still get to the same place that the legislature has acted numerous times with intention based
on the language that they passed to create laws that make it lawful for women to obtain
abortions in numerous circumstances and have regulated how and when physicians can provide
those abortions. Does any part of 9-40-04 survive the impliedly repeal argument? For instance,
sub five. Is that impliedly repealed? No, and I think that's consistent.
It applies only to the extent that it remains a few to side statute.
So, sub five doesn't do very much work in a feeder side statute perhaps, but to the extent it would
apply just like the other feeder side statutes, we're not talking about consensual abortions.
So, just if I may finish this. So, all of 9-40-04s impliedly repealed or just sub one,
two way. I mean, what parts? All or nothing? All of it has been impliedly repealed, has an
abortion statute. To the extent that it's doing separate work, has a feeder side statute,
it's not essential to apply, you know, to implyly repeal that.
Thank you. The last person in the room I would want to disagree with is Justice
Anne Los Bradley, but do you read the attorney's general's thing?
I'll regret this later. Do you read the attorney general's brief the way
Justice Anne Los Bradley characterizes it? I'm just not sure I did, and I didn't see,
I saw them laying out the black argument first, and then the implied repeal, but
I didn't see them, and this must be so painful for you attorney jurists. If I were you, I'd
want to just grab that microphone, but I didn't read the briefing that way. I read it as what
you just said, that there were two ways to get to the same answer.
Justice Kraske, that has long been my understanding of their position since the
circuit court and in their briefing today. And in that argument today as well.
Can I ask a question about the injunction? There wasn't a injunction that I believed
the, your clients asked for in the trial court. Is that, are we done with the injunction? Is there,
is that still a live issue? What, if anything, would you like us to do with the injunction?
If you declare that 940-04 is not enforceable against healthcare providers,
providing abortions, then no injunction should be needed. That should be the law of the land
that controls the actions of prosecutors across the state. We wanted to be clear that we avoid any
problem of, of a declaration only applying to the parties in the case, or, you know,
versus subsequent district attorneys or district attorneys and other counsel,
but we believe that's been clarified. And we think any decision by this court certainly will be the
law of the land, which would negate the need for a separate injunction.
Counsel, did I understand you to say that 940-04 sub-5 survives and applies to feed-a-side?
I think it's not really relevant to feed-a-side. I don't think it's going to be doing a lot of work.
But again, I think the important part here is that has an abortion statute all of 940-04
is impliedly repealed. The section says this section does not apply to a therapeutic abortion,
which A is performed by a physician and B is necessary or is advised by two other physicians
as necessary to save the life of the mother and C, unless an emergency prevents, is performed
in a licensed maternity hospital. How could that possibly have any application to
an interpretation of the statute to limit it to feed-a-side? I agree.
So do you agree then that the statute is that section is about abortion?
I agree that we've never argued against the notion that when 940-04 was drafted,
it was about abortion. But if you're making an argument about black, then you're arguing it
somehow is no longer about abortion? Right. When the legislature in 1985 passed statutes
that covered the exact same conduct that it replaced 940-04.
So that's an implied repeal argument. Let's put that aside for a moment. I understand that argument,
but if we're not about talking about implied repeal, we're just talking about black,
then we're just talking about what the statute says. So a statute that says it's about abortion,
titled abortion, case after case after case for 100 plus years, and this court said was about
abortion. What you're arguing is that we should take black's statement about subsection 2a,
apply it to subsection 1, overturn all these other cases despite the plain language of the
statute and just say it wasn't about abortion. Putting aside implied repeal, I'm talking about
the black argument here. That's one possible way to affirm the circuit court, and that's what
the circuit court did. I mean, we're trying to get it right, I hope, but not just get an
outcome here. So could you make an argument to me that the statute is not about abortion?
The abortion, the statute was about abortion when passed.
Again, the applying black, the circuit court said it's not about abortion. We think another
approach is the implied repeal argument. That's implied repeal, and you did make both arguments.
So I want you to put implied repeal aside for a minute. Please just focus on black,
and you're making a textual argument because you'd have to extend black's reasoning, overturn
some cases. So make for me a textual argument that 940-04-sub-1 is not about abortion.
The circuit court followed the rationale that was set forth by this court in black. It's not at
liberty to replace the logic and holding of this court with its own...
Well, in the Greek sense, this court said 940-04-sub-1 was about abortion and to find the elements
and called it an abortion statute. Despite the language being, you know, practically the same as
sub-2. Right. So, I mean, the circuit court applied a different statute than what this court
authoritatively has construed sub-1 to mean. Right?
Again, that's not the argument we're leaning into. I think we set forth in our briefcase.
It is one of the arguments you made. If you want to abandon it and say it's not a good argument,
then feel free to do so. That's always helpful when we have...
I think the position... I think the physician's stronger arguments are the constitutional concerns
that are raised, that there's a lack of fair notice and due process caused by trying to revive
a law that hasn't been enforced in more than 50 years where there's a whole new body of
abortion statutes that have been enacted in the past 40 years. I also think it's important to look
at the legislative policy decisions that they have made over the past 40 years. We don't need
to look about what the legislature thought was important or appropriate in 1859 or even 1955.
We need to look at what the legislature did over the past 40 years and consider the will of the
people. The legislature is acting with the consent of the governed. That's all of us in this room,
not whoever voted for the legislature in 1859 or 1955. Public views on abortion have shifted
dramatically. So you might say the legislature only did these things because of Roe, but the
legislature maybe hasn't taken any other action since black or since jobs because it is honoring
the will of the people. Could you address the facial challenge point as doctors, you know,
representing the doctors of the situation, you are attempting to argue in your constitutional
arguments that all of 944 would be struck down again. Put a side-applied repeal, it's a different
argument, your constitutional arguments. The counter here is that the law is pretty clear that
unless it's unenforceable in all its circumstances and situations that your facial challenge would
fail. And there certainly seems to be lots of examples that don't fall into even some of the
scenarios that you might adopt where there's any kind of lack of clarity. So how can you win on
your facial challenge? Yes, district attorney romancy's argument that we cannot establish a
valid facial challenge unless it applies in all circumstances ignores the language of Johnson
versus the United States and overstates the seven circuits analysis and Planned Parenthood of
Indiana versus the Marion County prosecutor. In the former, the Supreme Court has stated that
its holdings squarely contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within the provision's grasp.
The seven circuit discusses Johnson. Its actual holding is based on the principles of federalism
where it says the federal courts should not step into the matter yet before state agencies
could provide additional pre-enforcement guidance and that it was the purview of state courts,
not federal courts to interpret and limit statutes, has necessary to provide fair notice and due
process. Stating the obvious, we are seeking a declaratory judgment in the state supreme court
and it is appropriate for this court to interpret statutes such that they do not offend state
and federal constitutions. D.A. Ermansky relied on state versus conrith which deals with an
over breath claim, not a vagueness claim, and he erroneously relies on civil cases including
gabler versus crime victim rights board which simply cannot stand for the proposition that
the criminal statutes are immune from this court's review. I see my time is up, may I finish my
point? Have you finished? I'll put one more. Go ahead. State versus Christians and instructs us
that criminal statutes should be strictly construed to provide fair notice to defendants.
Thank you for your time. Good morning. I'm Sam Lee and I have the privilege of representing
John Chisholm, the district attorney of Milwaukee County who is now passing the mantle to a newly
elected district attorney so likely this will be his final appearance in his official role
here before this body. Our submission was limited. There are a number of concerns that he had
primarily preserving prosecutorial discretion but there are a number of points that I wanted to make
and not to repeat what others have said because they've done a very fine job in their briefing
and also their discussion. District Attorney Chisholm does not agree with the position taken
by defendant Ermansky. Obviously it's the largest county in Wisconsin. That's important. There is
a legion of other district attorneys who do not agree with Mr. Dade Ermansky's position
and you've read the amicus brief that was filed by the prosecutor's association.
The fact that the issue of unclarity, probably these proceedings is a pretty good example
as to how unclear it is and further supporting the lack of clarity to the statutory scheme is
the fact that D.A. Ermansky is the only one who is a voice for his position.
Council, I want to address in your time that's short here. I'd like you to address and I think
you made a really important point and we didn't get to it with Attorney Ermansky's argument
but how the attorney general has the authority or standing here to step in and bring this lawsuit.
You made a point that the attorney general has no supervisor authority control.
The district attorney Milwaukee is elected by the people, has prosecutorial discretion,
same with Sheboygan, same with Madison. So could you just address that argument please?
Quickly, we believe that that argument is somewhat moot in these circumstances because
once the interveners became parties and Judge Slipper acknowledged jurisdiction
at that point in time that that was not an argument that was necessarily pursued
but regarding prosecutorial discretion. It's a really important tool that district attorneys have.
District attorneys need to have clarity in laws in order to apply their prosecutorial discretion.
Proscotorial discretion doesn't allow for legislation, it doesn't allow for
remedying laws that aren't clear and obviously prosecutorial discretion is not informed by
faith or political position and that's the problem in the position we have taken in this
is that the intervener certainly had standing so the standing issue was somewhat mooted
by that by their inclusion in the case. You're not reading the attorney general's
brief here to say that they are going to somehow eclipse your client or the other
70, 70 I believe it is. I think there's 72 counties. I think there's 71 district
attorneys because Shano Menominee is one. It's your random fun fact for the day.
I'm not exactly sure what you're arguing. Are you arguing? I don't think it is. I don't think
what you're saying is look the attorney general, I'm reading the, excuse me, I don't think what
you're saying is that you are reading the attorney general's brief and listening to the
arguments today and that somehow by coming here and asking us to either overrule black or to find
that 940-04 was implicitly repealed, impladly repealed by, because of 940-15, that by doing
that the attorney general call is somehow infringing on district attorney chisms or any of the other
70 district attorney's prosecutorial discretion. Are you? No. Okay. Our concern initially was that
somehow either the trial court or before this body, this would be, the decision would be couched
in terms of some effect on prosecutorial discretion and it shouldn't be because this is not a clarity
issue with a statute or a statutory scheme that should be subject to resolution somehow
by prosecutorial discretion. That was the concern in that regard. So, I just want to make sure I
understand what you're saying and correct me if I'm wrong, you're saying in a world where 940-04
and 940-15 are both alive, that it is very, very difficult for prosecutors to use there to apply
their discretion in that case. Yes. All right. That didn't mean to be captain obvious. I just
wanted to make sure I understood what you're saying. Yes, if they were both alive. If Judge
Slipper's decision were overruled and these were both alive, yes, it would be and our brief also
notes that Judge Slipper's decision is a workable decision. What she ruled is workable. The last
comment I wanted to make is the criminalization of potentially standard of care,
treatment by healthcare providers, it is very problematic as Justice Karoski indicated. What
are they supposed to do? And it is extremely problematic that the pregnancy obviously is a
circumstance that is somewhat reserved to obstetricians and some other healthcare providers.
The ability to provide standard of care treatment and to suggest that that should be criminalized
is very problematic. Isn't that discussion before the legislature though? I mean, is it really the
call of this court today to make sure practitioners know what they can and cannot do? The issue here
today is 940-04 and whether that's still on the books really. Yes, but ultimately the effect of
that is to either acknowledge a chilling effect on the healthcare community which ultimately
deprives a pregnant woman of her right to choice or not. I understand what you're saying and I
also understand a whole host of sympathetic facts that would trouble anyone. Having said that,
the issue before this court and the requests that are being made are sometimes two different
things that I'm hearing today. The issue before this court relates to 940-04, whether black rules,
whether it's impliedly repealed, whether it's still on the books, it won't answer every question
for everyone today. People need to be before the legislature and ask them to do their job.
Certainly, but the confusion that exists. Just as long as we don't have this perception that this
court is the legislature. No, and neither are DAs and the confusion that exists currently
is a very serious circumstance both to the healthcare community but also to pregnant women.
Thank you. Thank you.
Chief Justice and may it please the court. Just as D.A. or Manski has an opinion on what the law
currently is with regard to abortion, so too does Dane County, district attorney Ishmael
Osan and likely many of the other 69 district attorneys statewide. Osan believes the circuit
court's interpretation of 940.04 sub-1 and its reliance on black is the most appropriate and
logical interpretation of the statutory text and is the easiest and narrowest way to resolve this case.
Even though black specifically said it wasn't dealing with that section. Could you repeat that
agent quite here? Even though black specifically said it was not dealing with that section.
Your Honor, the language at issue here today in 940.04 sub-1 is effectively identical to the
language at this court reviewed in black 30 years ago. There is no reason that that same
language shouldn't also apply here. Perhaps because we held it it means abortion.
Your Honor, I'm not sure which cases you're talking about but if you're talking about it.
State degree sends and it was applied to abortion. Subsection 5 has an exception that says abortion.
You don't have to rely on statutory titles but if you want to it says abortion.
Everyone, even your counsel on your side of the table said yeah we all agree it was an abortion
statute when it was first adopted case after case after case says that. The idea that
statutory list is an abortion statute I mean I don't mean to overstate the case but that seems
incredible to me that one could make an argument apart from black which didn't even really interact
with the statutory text in a meaningful way that this 940.04.1 wasn't about abortion.
Sure I have a couple points in response. First I would say I think we disagree a little bit
about what the MAC Gresens and Cohen cases do. They were never thoroughly interpreting the
statutory text in the same way that the black case was and these cases were 30 years before
the black case was decided and dealt with a defendant raising alleged trial errors on appeal.
I will also just note that in black the court looked at the plain language of 940.04 sub 2a
and said the words of the statute are plain and unambiguous they could not be clear.
It is not an abortion statute it makes no mention of a abortive type procedure that is the same
language that we are seeing in 940.04 sub 1 there is no mention of a abortive type procedure and
that is why black is just positive here. Do you think if you went to any person on the street
and said let me read you something for a minute. Do you think the intentional destruction of
unborn life that language would apply to an abortion? Your Honor I am going by what this
court said in black 30 years ago. I know what it also interpreted the text. What it also said
I mean in case after case after case it did apply these two abortion restrictions it was
prosecuted as an abortion statute. I mean everybody knew it was an abortion statute. It was the
statute that the federal court said was unenforceable pre-row and post-row. Everybody everybody called
in an abortion statute and up until the circuit court everybody knew it was an abortion statute.
That's not what your Honor the court interpreted the same exact language in black in 1994 and
it does not describe an abortive type procedure. This is a feta side statute. This court would
have to overrule or distinguish black to find any other reading of 940.04 sub 1. Would you agree
that if we accept black will need to overrule or distinguish all kinds of other cases in
disregard some of the other plain language in the statute? I disagree with that. I don't think
you would have to overrule any other cases if you affirm black. What is your thought? Are you
familiar with 2927 or 29275 where the exact same definition that is used in 940 or 4
is used in those statutes that were enacted considerably later dealing with subsidies and
funding for abortion? Exact same words to find abortion. Am I familiar with those statutes?
Is that the question? While you agree that the exact same terms define abortion. Which
statute, 2927, 2927, 5? I'm not familiar with when exacted those statutes were enacted.
I do just want to make one or two final points. One about dict. They define abortion as the
intentional destruction of life of an unborn child. Chief, I'm sorry. I don't see a 2927
in the statutes. I can give you a copy later if you'd like 20.9275 20.927.
And those were enacted significantly later. 1997, I think 1977. There are a whole host of
statutes that are at play here. This is not a simple statutory scheme by any means in my opinion.
But that's been the definition of abortion. The statutes labeled abortion. It was subsequently
modified even after in 2011 in light of, it seems, 940-13. And certain things are taken out of 940-04
to comply with the then statutes that were in place. But guess what? They left in one and two
that were always understood to be abortion statutes.
I think, I see my light is out May. You may add a fleek to your son. I guess it would
just be the same thing that I already said. To say that lots and lots of cases have said
940-04 sub-1 is an abortion statute. I think overstates it. And it was more of a drive by
interpretation or a court reviewing a criminal trial on appeal. I think that the black case
is dispositive here. And there's no reason that every component of blacks rationale with regard
to 2A should not apply with equal force to the nearly identical language and 940-04 sub-1.
Thank you.
Can I ask one question? I didn't have a chance to ask. Thank you.
I want to ask you about 940-04 sub-5. Can you help me understand how that fits into your argument?
And imagine that, and given your answer, you don't have to rush.
940-04 sub-5 is a little problematic. I'll admit that because the black course did not deal with
that subsection, even though it did look at the context. I would point you to the states
brief, which I think's dealt with, subsection 5 pretty thoroughly. And I believe its page is
52 and 53 of the state plaintiffs brief. Thank you.
Thank you.
I'll begin by responding to the argument by doctors regarding fair notice and whether or not this is
an unconstitutionally vague, and if you can be one second, I'll raise the podium so that everybody
can hear me. Regarding the standard that is applied to an facial unconstitutional vagueness
challenge, they're correct. The United States Supreme Court in Johnson said, no, we don't apply
this standard where just because you can identify some application that would be constitutional,
the statute stands. But the reality is, the reality is, even under that standard, if there's a clear
cut core of conduct to which a statute can be applied, where the vagueness concerns would not
arise, the statute is not facially unconstitutional. Here, there plainly is, elective abortions for
otherwise healthy mothers early in turn, which, you know, it's not in the record. It's not healthy.
It's whether or not they're going to die. There's nothing about health of the mom. We went through
this. We went through this. I mean, unless someone is going to die, and I don't really know where
that line is, and I would be willing to challenge any, um, any OB in the country that they don't
know where that line is, it doesn't say health of the mother. It says life. And Justice Krowski,
the point I'm trying to make is that many people obtain abortions for reasons unrelated to health,
and there is a clear cut core of conduct. People who get elective abortions. Let's talk about the
sexual assault, right? Someone might want to get an abortion because they've been sexually
assaulted, right? 65,000 people. And the 14 states where abortion was made illegal after dabs,
65,000 people became pregnant. So all of those people might want an abortion, right?
And Justice Krowski, you're talking about the policy implications of the statute.
I am, I'm, you know what? I'm talking about real life. I'm talking about the implication
of what these decisions have on women and children and pregnant people in this state.
That's what I'm talking about. And Justice Krowski, I think the legislature is the proper
branch to take into effect those policy considerations. The point I'm trying to make
is that when we talk about vagueness and about drawing the line as to whether or not something
is necessary to save the life of the mother, you don't have to get that here. This is a facial
challenge. And the reality is there are many abortions that are performed where the woman's
life is not in danger and where the woman's health is not in danger. There's a clear cut core of
conduct to which the statute can be applied without raising any of these vagueness considerations.
That's the point I'm trying to make. You are unable to make your argument without talking
about the health of the mother. It's the second time you've done it in the last two minutes.
It's an almost impossible, it's that you, I don't think you can thread that needle.
And you've tried it twice and you haven't been able to do it. And that's the point.
Justice Krowski, the point I am trying to make is that as I understand the doctors,
they are raising their vagueness challenges saying sometimes we can't draw the line between health
and life. That's the point they're trying to make. And the point I'm trying to make is that there
is a clear cut core of conduct that is so far removed from that call between whether or not
it's health and life. Because there are many abortions that are performed that don't even
get into the realm of health. That's the point I'm trying to make. And because there's that conduct
and it is a clear cut core of conduct that doesn't even cross the line into health.
So you don't even get to the question of whether or not you're between health and life
that a facial challenge necessarily fails here. And under that umbrella are 65,000 women under
that umbrella is carrying a fetus that has a fetal abnormality, right?
Justice Krowski, I'm not the legislature. And I guess the point, the additional point that I
would make is state versus what makes very clear that you don't take up a facial challenge when
the plaintiff, the statute can be constitutionally applied to the plaintiff. The only party here
that has any standing at all is Dr. Lierly who performed abortions in Chibwegan. There's no
just issue controversy between any of the other plaintiffs and any of the other DAs. They're on
the same side. And the reality is Dr. Lierly says in her affidavit that she performs
elective abortions. So under state versus would you don't even have to get to any of this
facial unconstitutional vagueness questions that the physicians are raising. And I guess
the last point I would like to make is that when we talk about implied repeal, we're talking
about one of the most anti-democratic things this court can do. It is anti-democratic.
It's a statute that the legislature has not repealed. And this court is saying, no,
you actually repealed it, even though you didn't. And I can't say it a single example.
And nobody else has of a case where this court is held that an implied repeal exists where the
legislature actually had a provision in a draft of a bill expressly repealing the statute and took
it out. It's never happened before. This would be unprecedented. And in fact,
it would go against this court's precedent. In Connolly, where this court said, if you considered
a repeal, you didn't do it, it's not for this court to do with the legislature.
So what about Matthew AB? Say that again. Matthew AB.
That's a case where we found implied repeal based on the conduct of the legislature,
which when you propose it's anti-democratic, it's also anti-democratic to disregard legislative
policy for decades to go back to legislative policy from 1849. But are you familiar with
Matthew AB? I'm not just still. It's a case involving chapter 980. It's in case involving
how to interpret what is very clear law from the older law, which said you cannot involve juvenile
adjudications when you're using 980 later on. And 980 created a comprehensive scheme that allowed
you to use the juvenile adjudications. And this court found that that was
impliedly repealing an older statute. And I'm not familiar with the facts of that case, but I guess
if my point is, in that case, did the legislature have an earlier draft of the statute that would
have expressly repealed? We talked about this. We talked about this because you didn't just have
what you're saying. You also had an express bill that would have said that this does not
implyly repeal, impliedly repeal. And they didn't pass that either. So you have, if you're
going to look at legislative history, you have to look at both of those. Justice Dalit, I am,
and I see a tie. And in this situation, the burden is on the burden is on the party seeking
implied repeal. That Matthew AB had a good dissent. You should read that sometime.
I want to ask, I see in black, it says, when the legislature enacted 940.15, it did not repeal
940.042A. Nothing persuades us that the legislature intended to implyly repeal 940.042A when it
had acted 940.15. You agree with that, don't you? It certainly did not intend to imply the
repeal 940.04. Correct. So you agree with that part of black? Correct. But you disagree with,
I mean, when I look at black, I'm taken by the group that says the group, I mean the
esteemed justices who were in the majority, who were Wilcox and Steinitz and Babbage and Day
and Justice Geske, right? And all of them, after looking at this case very clearly and several times
said this is not an abortion statute. The clear and plain language says this is not an abortion
statute. So those five justices, the majority, coming from what one may argue as a myriad of
backgrounds and views of life, looked at it and not just once, not just twice, but reiterated
in its short opinion. The language is clear. There's no doubt about it. This deals only with
feet aside, it is not an abortion statute. But you're saying they're wrong, is that correct?
I think under this court's recent decision in Waukesha County versus MAC, that decision was
unsound in principle. They didn't undertake a comprehensive examination of the statutes or
consider relevant subsections. We use unsound in this principle as fancy language. They're
wrong, that's what you're saying. Yes, they're wrong. And it pretty clearly says we address only
940.042A and make no attempt to construe any other sections of 940.04.
That's correct, Chief Justice Eagler. Not only did they not undertake a comprehensive
examination, they were pretty open about the fact that they weren't undertaking a comprehensive
examination. I thought your position and your brief, correct me if I'm wrong, was that there's
no material difference between the 2A and sub-1. There wasn't that your position in your brief.
I believe that was the position of the circuit court below and the position of the respondents
who are arguing for that position to be affirmed. Our position is state versus black clearly didn't
overrule the prior precedents of this court applying 940.04 sub-1 in the context of abortion.
So if you're applying the right precedents here, those are the precedents that apply.
The difference between the 2A is the use of the word quick or quickening.
Did that make a material distinction for purposes of analysis in your mind?
I actually think it does. And the reason I say that, Justice-
Your brief, you indicated that it didn't. Well, Justice Bradley, I think it made a material
difference in the Supreme Court's reasoning in black. And I see my light is on, but if I could
finish my answer to this particular question. In black, the court was applying the harmonious
reading canon. They were saying we have to read these statutes in a way that they don't conflict.
Our position obviously is there's actually no conflict here. But here's the important point.
They never even recognized a conflict with the application of 940.04 2A to a pre-viability
abortion. So even if you took everything that blacks said as correct, they're avoiding this
conflict. The only conflict they ever identified with respect to pre-viability
was Roe. And Roe has been overturned. So even under the reasoning of black, we believe you could
apply 940.04 to an abortion in the pre-viability stage. Thank you.
All right. Thank you very much. We have concluded oral
or is it we will convene at 1245 in conference.