Wednesday, January 23, 2008

Are Berceau, Miller and One Wisconsin Now misrepresenting state abortion law?

Cory Liebman and One Wisconsin Now are promoting the efforts of some Democratic legislators to repeal Wisconsin's pre-Roe v. Wade ban on abortions. It is certainly true that the law, sec. 940.04, criminalizes abortion. It is also true, as I demonstrated in this white paper for Americans United for Life, that, should Roe be overruled, sec. 904.04 could be enforced against abortionists(although I suggest that the penalties for abortionists might not be those set forth in 940.04 itself.)

But Liebman is wrong to suggest that the law would impose "jail time on women that obtain abortions" and even jail "victims of sexual assault and those who experience serious health problems."

It would do no such thing. Sec. 940.04(3) did provide for imprisonment for women seeking abortions and that language has not been removed from the statute but it has been rendered inoperative, i.e., it has been effectively repealed.

In 1985, after Roe, the legislature passed several new laws, including sec. 940.13 which removes all criminal penalties for women seeking abortions. It reads:

940.13 Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
(emphasis added)

Thus, on the day after Roe is overuled, abortionists could be prosecuted under 904.04, but women seeking abortions could not because of the exception created by the more recent sec. 940.13.

How could Liebman have made this error? Sloppiness is one explanation. If you just read 940.04 and ignored the other statutory provisions on abortion (including those in the same chapter of the statute), you could get it wrong. Maybe you could excuse a non lawyer for failing to understand that there could be other law out there modifying the impact of 940.04.

But I rather doubt that Cory Liebman actually read the law. It occurred to me that this error likely came out of someone's talking points.

And so it did. Liebman's post links to a press release by the bill's sponsors, Rep. Terese Berceau and Sen, Mark Miller that is apparently the source of this misinformation. It says that the "criminal abortion statute outlaws abortion and provides criminal penalties for women and physicians." The release says that "[t]his 158-year-old law imposes jail time on women who obtain an abortion, even those who are victims of sexual assault or who are experiencing serious health problems. Doctors would also face stiff penalties and jail time. The antiquated statute would be enforced immediately if Roe v. Wade were to be reversed — a very real threat given the current composition of the U.S. Supreme Court." (emphasis added)

A Berceau quote then talks about people wanting to throw women in jail for having an abortion. The clear message is that we have to repeal 940.04 because, if we don't and Roe is overturned, women who have abortions will be prosecuted and sent to jail.

But, as I have pointed out, state statutes now bar criminal penalties for women seeking abortion. If Roe is overturned, sec. 940.04 could not be used to prosecute them.

Liebman can at least say that, after all, he doesn't know what he's talking about. But Berceau and Miller are legislators who we'd think would get some legal advice when they start talking about changing state law.

Well, it turns out that they did. The bill repealing sec. 940.04 (SB 398)- the very one that Berceau and Miller sponsor - includes a Legislative Reference Bureau analysis that recognizes the existence and effect of sec. 940.13:

This law (940.13) prohibits prosecution of and imposing or enforcing a fine or
imprisonment against a woman who obtains an abortion or otherwise violates any
abortion law with respect to her unborn child or fetus.

I would have assumed that legislators read the bills that they sponsor, but I have, sadly, learned that this is not always so. Maybe Berceau and Miller really think that, if Roe were repealed, sec. 940.04 could be applied against women.

Or maybe they know that there would be much broader - and energized - opposition to jailing women than jailing abortionists. Could they have chosen, in Clintonian fashion, to refer to statutory language that they know can no longer be enforced in order to mislead people into thinking that, should Roe be repealed, sec. 940.04 could be used to throw women seeking abortions into jail?

I sure hope it wasn't that.


Anonymous said...

I would not put anything beyond the realm of deception when it comes to the abortion movement.

Just recently I learned that keeping death counts that occured from legal abortions were stopped in 1986 to keep this information from public knowledge. Then there is the breast cancer and depression problems caused from abortion that does not get the attention it should. It goes on and on.

The interesting thing is that abortion is on the decrease and that the younger generation is opposed to it. This is one big business that needs to fail and thanks for alerting us to what they are now up to.

Anonymous said...

And while you're at it, let's take away women's voting rights, too.

John McAdams said...

Frankly, under some circumstances women should be subject to punishment for getting an abortion.

A scared teenager probably should not, but a 25 year-old who has a second abortion doubtless should.

Anonymous said...

No women should receive punishment for a medical choice she makes.

There is no need for paternalist state.

Its funny how the welfare mom has become the abortion teen, but those who oppose it the most are the quickest to obtain the procedure, if it means their daughter getting kicked out of catholic school.

but thats okay, god forgives white people, right?

Anonymous said...

I don't understand your position. You believe abortion is murder, but you want to excuse the person who sought the abortion from prosecution? This is the hypocrisy. You know that no law could pass if you held the mother to be criminally reponsible, so you allow this pretense that somehow she's not really a part of the procedure. But that's the whole problem, isn't it? For 5-6 months, a fetus cannot survive without the mother, so to give a fetus rights, you have to take away the mother's right to control what happens with her own body. I hate abortion, but I can't support putting the legal rights of an unborn fetus, especially in the first trimester, over the rights of a born person. But if she chooses abortion, she chooses it. She has to seek out the clinic, make an appointment, pay for it, live with it.... How is she not as responsible as the person who performs it?

Anonymous said...

To John McAdams: Really. . .so you wouldn't punish a teenager for having to make the decision to abort an unwanted pregnancy, but you would a 25 year that you would assume is her second? Hmmm. . .can you say discrimination? With that kind of thinking, I suppose you wouldn't punish a teenager who murders a person, but you would a 25 year old who murders someone! Sorry, pal, but every woman should be able to make the CHOICE herself on whether to abort or not. It doesn't depend on age nor does it depend on how many abortions a woman has had.

By the way, the Right to Lifers quite often claim that some women have had countless abortions. I sure would like to see some credible statistics to back that argument up.

The right to choose (or not choose) to have an abortion should be left up to the woman, and the woman alone! I certainly do not want the government to tell any woman why she can and cannot do with her own body!

Anonymous said...

Dark Ages

Take away women's voting rights? Being pro-life is not about the supression of women in the world; it is about saving lives.

As is so often done, you are trying to disguise the position that you and groups like NARAL Pro-Choice America are trying to promote. For those such as yourself, it's not about a woman's right to choose but a woman's right to end the life of her unborn child. That is why the pro-abortion movement refuses to speak out in support of a woman who seeks murder charges after an intentional blow to the belly results in the death of her unborn child. Supporting her belief that a fetus is a human being is dangerous to the cause. If one was truly "pro-choice" they would support decisions on both sides.

Kelda Helen Roys, JD said...

There is no question that anti-choice groups are exuberant about Wisconsin's harsh criminal abortion ban. According to their own website, "Wisconsin Right to Life has worked valiantly for over 30 years to keep this law on the books. Why? Because when the day comes that Roe v. Wade is overturned, Wisconsin will be one of the first states in the nation to shut down all Wisconsin abortion clinics – as long s.940.04 remains in the statutes."

They want abortion to be a crime, forcing women into dangerous, illegal, back-alley abortions. And the law on the books that they are so jolly about, Wis. Stat. 940.04, makes abortion a crime for women, and a crime for anyone helping a woman - primarily doctors, we assume. Now they're trying to distract attention from their harsh, uncompassionate stance by creating a false controversy about the language of the statutes.

WRTL contends that, although the criminal abortion ban would immediately go into effect upon Roe v. Wade being overturned, women could never be threatened with prosecution because of a conflicting statute passed in the 80s. Their glib assertion should not give comfort to those concerned about abortion once again becoming a crime.

Let's look at the history. In 1985, the legislature was all set to repeal the entire criminal abortion statute (enacted in 1850, when slavery was legal and women couldn't own property). But at the last minute based on enormous pressure from Wisconsin Right to Life, rather than taking the statute out, they instead inserted a separate statute, saying that women could not be punished for violating 940.04. This is strange: if you want to decrminialize something, you remove the statute that criminalizes it - not write another law that says, "if you violate it, you can't be prosecuted." Stranger still, because the underlying criminal statute was inoperative: unconstitutional as held in Roe v. Wade. But WRTL knew exactly what it was doing. By this sleight of hand, they preserve the law - including the parts that prescribe jail time for women - for the moment when Roe is overturned. And who's to say what every Joe District Attorney from any one of Wisconsin's counties might do? Might just one of them try to enforce the law against women? Well, WRTL could never, oh never, have imagined that!

Legal Newsflash: when two statutes are in direct conflict (such as one law making it a felony for a woman to have an abortion, and another law saying women can't be fined or imprisoned for having an abortion), litigation ensues and it falls to the courts to resolve the conflict. Contrary to WRTL's assertion, there is no automatic rule saying which statute "wins out," and it is not at all certain that women will automatically be protected from prosecution or attempts to prosecute.

There are some basic principles that courts use to decide how to interpret the conflicting statutes. The first principle is that statutes should be read for their plain meaning, i.e., having an abortion is a felony. The next rule is that no statute should be interpreted as to render another statute meaningless - a very difficult task when the statutes present such a direct conflict. While many other factors may be used to try to resolve the conflict, the final legal outcome will be unclear until courts, and possibly the Wisconsin Supreme Court, rule on this issue once and for all.

National and Wisconsin experts in reproductive health law have concluded that legal action against women who have abortions, remains a possibility until 940.04 is taken off the books.

What does all this mean for Wisconsin women in a world without Roe v. Wade? It means, according to WRTL's own statements, that abortion will immediately become a felony. It means that prosecutors will be able to pry into her private medical records, harass women, their families, and doctors under the guise of investigating potential "crimes," like miscarriages. It means that prosecutors could try to enforce 940.04 against her, charging her with a felony for having an abortion. Then it falls to the woman to defend herself, likely by arguing that the prosecution is invalid because of the later statute.

In any case, the best scenario for a woman charged with a felony for having an abortion, is that she endures a very costly, difficult, wrenching, and time-consuming process and then wins with a ruling saying that the prosecution is not valid. The worst case scenario is that she loses, is prosecuted, convicted, and sentenced. Individual judges will decide how these conflicting statutes are resolved unless the legislature acts to repeal Wisconsin's harsh, heartless criminal abortion ban.

Anonymous said...

Kelda, the anti-abortion loonies have other inconsistencies as well. Consider the Assembly debate this week over emergency contraception.

There stood the distinguished Representative from Cascade, fretting over the fertilized egg not being able to implant. At the moment the sprem penetrates the egg, we have a real human being, worthy of the protection of the full majesty of the law, just like you or me.

When the fertilized egg fails to implant (as happens a certain percentage of the time in the natural course), should we have a funeral and burial? Shouldn't the loss of this life be accorded the same respect as Granny when she passes?

Or take how the wingnuts wink at IFV yet weep hysterically over the 2-3 dozen fertilized eggs which have been used to create all of the stem cell lines in our state over the last decade. Thousands of fertilized eggs are thrown away at IVF clinics in the state each year, but that isn't a matter worthy of any action by Wisconsin Right to Lie or Pro-Lie Wisconsin.

McAdams comments are laughable. This is what passes for scholarly comment from a man who takes so much pleasure in referring to himself as "Doctor"?

Anonymous said...

Aborting a female baby does take a away a womens voting right.
Killing your baby is not a "medical procedure".
I thought you guys called that "a choice".

Rick Esenberg said...


Not even close.

Contrary to WRTL's assertion, there is no automatic rule saying which statute "wins out," and it is not at all certain that women will automatically be protected from prosecution or attempts to prosecute.

Actually in this case there is. While courts should try to read statutes to be consistent with one another, you can't reconcile 940.04's imposition of criminal penalties on women who have abortions with 940.13's absolute prohibtion of such penalties. If you have a way to do so, I'd love to hear it.

In situations where statutes cannot be reconciled, the later passed law supercedes the earlier one. 940.13 precludes the prosection and imprisionment of women seeking abortions. I don't think its even debatable.

The legislature was not set to repeal the entire criminal abortion statute in 1985. Pro life forces won that battle, convincing a majority not to do so. Instead the legislature enacted 940.15 which sought to criminalize those abortions that Roe would permit to be criminalized and 940.13 which removed criminal penalties for women seeking abortions. It was not a sleight of hand. It was a legislative judgment that, should Roe be repealed, we want to impose broader criminal penalties but only on the abortionist and not one the women having one who many pro-life advocates regard as just another victim of the abortion culture. You may not agree with that, but that's what they did.

Accoring to WRTL, the reason that the legislature repealed the criminal penalties upon women in a separate statute was out of concern that the bill including the repeal, which contained many other things, would be subject to the governor's extraordinary veto power. The concern was that then Governor Tony Earl would transform the repeal of 940.04's penalties against women seeking abortions into a repeal of sec. 940.04 in its entirety.

National and Wisconsin experts in reproductive health law have concluded that legal action against women who have abortions, remains a possibility until 940.04 is taken off the books.

If you can direct me to someone who has actually attempted to make a credible legal argument in support of that position, I'd love to take a look at it. But arguing that some prosecutor might try to do what he or she quite clearly cannot doesn't cut it.

Jay Bullock said...

Well, Rick, this all raises the question: Why penalize the doctor for performing a procedure his or her patient requested but not penalize the one who requested the procedure? To make a perhaps hyberbolic comparison, isn't that a little like absolving the Don who ordered the hit?

It stands to reason that if the state (or at least one side of the argument in this issue) considers abortion to be a criminal act, then everyone who conspires to commit the criminal act ought be held responsible. To suggest that one party to a crime--or, more absurdly, that one subset of one party to the crime, as John McAdams does--should not be held liable for the crime is a gross deviation from the norm.

I'm not a lawyer--I usually don't even play one on the internets--but I think the first doctor held on a charge of performing an abortion would have a pretty solid appeal on equal protection grounds, if not outright jury nullification.

Which all raises the second question: What do you think the penalty ought to be for a woman who has an abortion?

Rick Esenberg said...


It doesn't beg my question because my point was that Berceau and Miller are misstating the law to increase sympathy for their proposal.

As to your question, it's not unheard of to excuse a voluntary participant in an act that the law otherwise prohihits or regards as actionable. In a case of statutory rape, we don't penalize the minor. In contract law, we excuse people who voluntarily enter into unconscionable contracts. In tort law, doctrines like assumption of the risk, which barred someone who chooses to use an unreasonably dangerous product from suing its manufacturer, have been weakened or abandoned.

There is a strong tradition in pro-life thinking that women who have abortion are (at least) often the victims of the failure of those around them - most often the father - to assume their own moral responsibility. In response to this, she has made the wrong choice, but is less culpable.

And, frankly, its something of a political compromise reflecting people's intutive sense of the thinking that I just described. People are far more willing to impose criminal penalties on the abortionist than on the woman whose pregnancy is aborted.

And that's precisely why Berceau and Miller have focussed on that part of 940.04 that could not be enforced.

Anonymous said...

Then wouldn't John McAdams' point be more appropriate? Some women may be "victims" in this, but should there be a pass for those who substitute abortion for responsible birth control? And given the information that is required to be provided to a woman seeking abortion, I don't know how you can argue she is the victim of an unscrupulous abortionist who isn't giving her the real story. She knows what she's doing. She chooses to do it. And I believe if the anti-abortion crowd thought they could get a law passed that punished women, they would. It is a political calculation to let her off.