Academic journal article Issues in Law & Medicine

In the United States District Court for the Western District of Wisconsin

Academic journal article Issues in Law & Medicine

In the United States District Court for the Western District of Wisconsin

Article excerpt

At issue in this matter is the constitutionality of 1997 Wisconsin Act 219, codified at Wis. Stat. SecSec 895.038 and 940.16 (the "Act").

The Act forbids any person from intentionally performing a "partialbirth abortion." Wis. Stat. Sec 940.16(2). It defines "partial-birth abortion" as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes delivery of the child." Wis. Stat. Sec 940.16(1)(b). "Child" is defined as a "human being from the time of fertilization until it is completely delivered from a pregnant woman." Wis. Stat. Sec 940.16(1)(a). The Act provides an exception to its criminal sanction where a partial-birth abortion "is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness, or physical injury . . . if no other medical procedure would suffice for that purpose." Wis. Stat. Sec 940.16(3). Violation of the Act is a class "A" felony under Wisconsin law, subjecting violators to life imprisonment.

The Act also creates civil liability for its violation. It authorizes the father of the child aborted by the partial-birth abortion and, if the woman on whom the abortion was performed is a minor, either of her parents, to sue for damages. Wis. Stat. Sec 895.038(2)(a). Either may sue regardless of whether the woman consented to the partial-birth abortion. However, neither may sue if he or she consented to the partial-birth abortion. Wis. Stat. Sec 895.038.

In its enactment the Wisconsin legislature rejected proposed amendments, Exhibits 1-15. Procedural History

Plaintiffs previously sought a preliminary injunction against enforcement of the Act which this Court denied. Planned Parenthood v. Doyle, 9 F.Supp.2d 1033 (W.D. Wis. 1998). On the basis of undisputed facts, the Court found that (1) the Act could be narrowly construed to apply only to the dilation and extraction ("D & X") method of abortion, (2) the scienter requirements in the law helped save it from a vagueness challenge, and (3) the Act did not place an undue burden on a woman's right to choose an abortion. Accordingly, the Court found that plaintiffs had failed to establish a likelihood of success on the merits.

The Court of Appeals disagreed. Planned Parenthood v. Doyle, 162 F.3d 463 (7th Cir. 1998). It found that plaintiffs might succeed in proving the Act unconstitutional for any of three reasons. First, the Act makes no exception for cases in which the fetus is not yet viable at the time of the abortion. Id. at 466. Second, the Act contains no exception for cases in which a D & X procedure is necessary for the preservation of the mother's health. Id. at 467. Third, the Act is vague. Id. at 469.

The Court of Appeals specifically noted that its opinion was based on the record compiled at the time and that "the full trial may cast the facts in a different light." Id. at 466. Accordingly, a trial was held in this matter to determine whether the evidence presented by the parties would continue to justify the Court of Appeals' concerns regarding the constitutionality of the Act.

Findings of Fact

Based on the evidence presented at trial and those facts to which the parties have stipulated, the Court makes the following findings of fact. These findings may be divided into three parts according to the issue they primarily address. In the first group is evidence relating to the vagueness of the Act-whether the Act can be construed to apply to any procedure other than the D & X procedure. In the second group is evidence relating to the impact of the Act-whether its purpose or effect is to place an undue burden on a woman's right to an abortion. In the third group is evidence relating to the state interests served by the Act.

The Court will present its factual findings according to this division of the relevant evidence. The facts to which the parties have stipulated are accepted as true except to the extent they conflict with the following findings. …

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