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>> 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 MEAN 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.