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Some thoughts on Dobbs

Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage

As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.

Roe‘s overruling raises the question of whether Wis. Stat. §940.04 prohibiting abortion is now enforceable.  Section 940.04(1) provides that “[a]ny person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.”  This does not apply to abortions performed by a physician if it is necessary to save the life of the mother. Wis. Stat. §940.04(5).

Attorney General Josh Kaul said that he will not enforce the lawGovernor Evers said that he will grant clemency to doctors convicted under the law. Of course, local district attorneys still have the discretion to prosecute violators. The Milwaukee and Dane County District Attorneys have said that they won’t. Other district attorneys have said that they will. Click here regarding La Crosse County and here regarding Sheboygan County. So expect to see abortion prosecutions in some counties but not others.

For now, the declaratory judgment action that Kaul filed on June 28th in Dane County Circuit Court may provide doctors and the defense with a reprieve.  It asserts that §940.04 is unenforceable because its provisions are incompatible with several statutes enacted after it, which provided parameters for when an abortion may be performed.  The later-enacted laws impliedly repealed the earlier-enacted laws.

The lawsuit also asserts §940.04 is unenforceable because of its disuse and society’s reliance on Roe. That’s an invocation of desuetude, a legal doctrine by which a law becomes obsolete due to disuse. In Lawrence v. Texas, 539 U.S. 558 (2003) SCOTUS used this doctrine to strike down sodomy laws as applied to people who are gay or lesbian.

The La Crosse County DA (see link above), notes that it is difficult to prosecute when you don’t know which law applies. Nobody can be certain about the applicable law until SCOW decides the question or the Wisconsin legislature repeals the various abortion laws on the books and adopts a new one.

Dobbs has other implications for SPD clients. The majority noted that the 14th Amendment has been held to guarantee some rights that are not mentioned in the Constitution. Abortion isn’t one of them because it is not “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Majority, at 5. So what other unenumerated rights might be at stake? Justice Thomas says the right of married people to obtain contraceptives, the right to engage in private, consensual sex acts, and the right to same-sex marriage. These are not “substantive due process” rights. They should all be reconsidered under the 14th Amendment’s privileges and immunities clause. Thomas concurrence at 3.

This debate should sound familiar to lawyers following SCOW’s recent involuntary medication decisions. SCOTUS has held that individuals have a “substantive due process right” to avoid unwanted antipsychotic medications. Washington v. Harper, 494 U.S. 210 (1990). But Justice R.G. Bradley, like Justice Clarence Thomas’s concurrence in Dobbs, argues that this is incorrect. The 14th Amendment “does not protect any substantive rights.”  Winnebago County v. C.S., 2020 WI 33, ¶47, 391 Wis. 2d 35, 940 N.W.2d 875. And Justices Hagedorn and Roggensack seem to agree with her on that point. They did not join her opinion because they felt bound by SCOTUS precedent on the subject.  Hagedorn’s dissent, ¶76. But suddenly SCOTUS precedent feels pretty shakey.

So, if you head to SCOW claiming that your client has a “substantive due process” right to something, you might want to argue that the right is also rooted in the 14th Amendment’s privileges and immunities clause and/or the Wisconsin Constitution.  Otherwise, if you need R.G. Bradley, Hagedorn, and/or Roggensack, you are unlikely to win them.

This post is intentionally brief. Feel free to highlight other implications of Dobbs for defenders and/or propose defense strategies in the comment section below.

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{ 7 comments… add one }
  • Bill S. July 5, 2022, 10:52 am

    The Wisconsin Constitution does explicitly recognize a right of privacy, although it has generally been construed very narrowly in past decisions.

  • Wm. Tyroler July 5, 2022, 12:33 pm

    The Wis Const recognizes a right of privacy for crime victims, Art. I § 9m(2b), but not otherwise, I don’t think. At least, not explicitly so. (Here’s a link to the doc: https://docs.legis.wisconsin.gov/constitution/wi_unannotated.)

    Implicitly, is a different question. Art I § 1 tracks the Declaration of Independence, and includes recognition of “certain inherent rights; among these are life, liberty and the pursuit of happiness[.]” Do those “inherent rights” include privacy? I wouldn’t know. But regardless, of course a right of privacy can be found in Art. I § 11. However, it’s been largely (not entirely) construed as identical to its analog, the fourth amendment. I’m not sure, in other words, it might readily support a state constitutional right to abortion.

  • Wm. Tyroler July 5, 2022, 1:04 pm

    On Point has an older post discussing desuetude, in the context of privacy rights: https://www.wisconsinappeals.net/on-point-by-the-wisconsin-state-public-defender/spousal-privilege-§-905-053-3rd-party-exception/. The cite to Martin v. Ziherl, unavailable at the time, is: 269 Va. 35, 607 S.E.2d 367 (2005); and is accessible here: https://scholar.google.com/scholar_case?case=17488130752261924182&hl=en&as_sdt=6,50. Couple of the links are dead, but “this Findlaw commentary shortly after Lawrence” may be found here: https://web.archive.org/web/20040428094639/http://writ.news.findlaw.com/grossman/20031216.html. And, “a post-Ziherl commentary by the same author” may be found here: https://web.archive.org/web/20050207111929/http://writ.news.findlaw.com/grossman/20050125.html.

    I don’t know if that post has much if any valence in re: abortion rights in Wisconsin, but might be of interest with respect to privacy rights with respect to sex crimes and to the doctrine of desuetude.

  • Bill S. July 5, 2022, 4:59 pm

    Please disregard my erroneous comment about an explicit state constitutional right of privacy. My memory misled me and I humbly apologize, how embarrassing.

    But Section 955.50 does recognize a right of privacy in accordance with the “developing common law of privacy.” It’s hard to believe that the present SCOW would apply that right to abortion, but it might be worth considering if and when there is a change in court personnel.

  • S. R. July 13, 2022, 11:40 am

    Dobbs recognizes that rational basis scrutiny applies to abortion regulations. Although this level of scrutiny affords less protection than Roe/Casey, it could still be used to strike down certain restrictions that would prohibit or significantly delay medically necessary procedures, at least in cases where the pregnancy has little chance of ever being viable. What rational basis is there, for example, in forcing a woman to continue an ectopic pregnancy until she is on her death bed? (At least one Missouri hospital is refusing to perform abortions until the woman’s vital signs begin crashing, under advice from its attorney.)

    One big question is whether these types of challenges must be brought on an as-applied basis, rather than as a facial challenge. Of course, an as-applied challenge might not provide timely enough relief to a woman who is forced to prolong a pregnancy that is seriously threatening her health every day. Perhaps one or more groups will bring a declaratory judgment action raising a facial challenge (or something between facial and as-applied) to Wis. Stat. § 940.04.

  • S. R. July 13, 2022, 11:45 am

    As AG Kaul’s recent lawsuit points out, the WI Supreme Court in State v. Black held that Wis. Stat. § 940.04(2)(a) prohibits feticide, not abortion. News outlets are incorrectly reporting that this statute prohibits abortion, and this of clarity has caused medical professionals to stop performing some medically necessary procedures out of fear of prosecution. This case will likely end up in the WI Supreme Court, which will need to provide clarity for medical professionals.

    Also, it’s possible that the WI Supreme Court will adopt something like the Roe/Casey framework under the WI Constitution, at least if a liberal judge wins Justice Roggensack’s seat next spring.

  • S. R. July 13, 2022, 11:50 am

    Although the Ninth Amendment has gotten little attention from courts, it clearly indicates that the U.S. Constitution protects certain unenumerated rights. Perhaps the Ninth Amendment protects all the unenumerated rights that are currently protected under the doctrine of substantive due process. Even if that’s true, it’s unclear what would happen to the “incorporation doctrine” (the doctrine that the Fourteenth Amendment’s due process clause incorporates almost the entire Bill of Rights against the states) if SCOTUS were to hold that the Fourteenth Amendment’s due process clause doesn’t protect any substantive rights. Perhaps the Ninth Amendment is the textual authority for protecting unenumerated rights (at least against federal encroachment), while the Fourteenth Amendment’s privileges or immunities clause is the textual source for both the incorporation doctrine and the protection of unenumerated rights against the states.

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