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Planned Parenthood of Wisconsin, Inc. v. Schimel

Court of Appeals of Wisconsin

February 24, 2016


         Submitted on Briefs June 11, 2015

         APPEAL from an order of the circuit court for Dane County: RICHARD G. NIESS, Judge. Cir. Ct. No. 2013CV478.

          Reversed and cause remanded with directions.

         On behalf of the defendants-appellants, the cause was submitted on the briefs of Maria S. Lazar, assistant attorney general, and J.B. Van Hollen and Brad D. Schimel, attorneys general.

         On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Lester A. Pines and Susan M. Crawford of Cullen Weston Pines & Bach LLP, Madison.

         Before Neubauer, C.J., Reilly, P.J. and Gundrum, J. NEUBAUER, C.J. (dissenting).


Page 605

         [367 Wis.2d 715] GUNDRUM, J.

         [¶1] Plaintiffs-Respondents Planned Parenthood of Wisconsin, Inc. (PPW) and Dr. [367 Wis.2d 716] Fredrik Broekhuizen sought and received from the circuit court a summary and declaratory judgment interpreting newly enacted Wis. Stat. § 253.10 (2013-14),[1] related to voluntary consent for an abortion, and Wis. Stat. § 253.105, related to medication abortions. Defendants-Appellants--the state attorney general in his official capacity, the Dane county district attorney in his official capacity and as a representative of a class comprising all Wisconsin district attorneys, and members of the Wisconsin Medical Examining Board-- appeal, contending Plaintiffs' entire action is nonjusticiable and therefore the court erred in granting judgment.[2] We agree with Defendants and reverse.

         Relevant Statutes

          [¶2] The following statutory provisions are of import to this appeal. Wisconsin's uniform declaratory judgments act, Wis. Stat. § 806.04, provides in relevant part:

Scope. Courts of record ... shall have power to declare rights, status, and other legal relations ....
Power to construe, etc. Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder.

[367 Wis.2d 717] [¶3] 2011 Wis. Act 217 (Apr. 20, 2012) created the following relevant statutory provisions. Wisconsin Stat. § 253.105(2) states: " No person may give an abortion-inducing drug to a woman unless the physician who prescribed, or otherwise provided, the abortion-inducing drug for the woman ... (b) [i]s physically present in the room when the drug is given to the woman." Subsections (3) and (4) provide for criminal and civil liability, respectively, for persons who violate subsec. (2), except that the pregnant woman herself is not subject to penalty. Wisconsin Stat. § 253.10 provides:

Page 606

(3) ... (a) Generally. An abortion may not be performed or induced unless the woman upon whom the abortion is to be performed or induced has ... given voluntary and informed written consent under the requirements of this section.
(b) Voluntary consent. Consent under this section to an abortion is voluntary only if the consent is given freely and without coercion by any person. The physician who is to perform or induce the abortion shall determine whether the woman's consent is, in fact, voluntary.... [T]he physician shall make the determination by speaking to the woman in person, out of the presence of anyone other than a person working for or with the physician....


          [¶4] PPW provides abortion services, including services for medication abortions, at three PPW centers. Broekhuizen served as PPW medical director at the commencement of this action, performs and induces abortions, and provides services for medication abortions. According to the undisputed affidavit averments of PPW's then-director of abortion services, Amy [367 Wis.2d 718] Doczy, PPW's protocol for medication abortions is as follows: A pregnant woman is prescribed two medications, Mifeprex[3] and misoprostol, both of which are provided to the woman in the presence of a physician at a PPW center. " The patient consumes the Mifeprex orally while at the center and is directed to self-administer the misoprostol buccally (dissolved between the cheek and gum) 24 hours later. Thus, the patient is not at the center and the physician is not physically present when the patient self-administers the misoprostol." A follow-up appointment is usually scheduled for approximately one to two weeks later to ensure the woman is no longer pregnant.

          [¶5] In 2012, the Wisconsin legislature passed 2011 Wis. Act 217, enacting the current language of Wis. Stat. § § 253.105 and 253.10. Plaintiffs filed a lawsuit in federal court, challenging both new provisions as unconstitutionally vague. Plaintiffs' expressed concern in that suit, as here, is that the terms " give" /" given" in § 253.105(2) could be construed as meaning the second pill in PPW's protocol, misoprostol, is " given to the woman" when she actually administers that medication to herself, i.e., introduces it into her body buccally twenty-four hours after departing the clinic, in which case the physician would not be present and therefore would be potentially subject to liability. Plaintiffs' second expressed concern in the federal suit, as here, is that under the voluntary consent provision in § 253.10, a physician could be liable if a woman claims following an abortion that her consent to the abortion had not been voluntary, even if [367 Wis.2d 719] the physician had previously made a good faith determination under the statute that her consent was in fact voluntary.

          [¶6] Defendants and Plaintiffs entered into a stipulation in the federal action in which Defendants agreed that their interpretations of these provisions of 2011 Wis. Act 217 were consistent with Plaintiffs' desired interpretations--i.e., that " give" /" given" in Wis. Stat. § 253.105(2) relates to when the two pills are handed to the woman at the clinic, not when they actually are introduced into her body, and that, under Wis. Stat. § 253.10(3), a physician does not violate the voluntary consent provision so long as the physician makes a good faith determination that the woman is voluntarily consenting to the abortion. The parties indicated in the stipulation

Page 607

that the federal court " shall enter a judgment ... binding all parties, including the class, and declaring that" the challenged provisions of Act 217 are to be interpreted in the manner desired by Plaintiffs. The court, however, declined to enter a proposed judgment incorporating the stipulation, and instead indicated its intent to proceed on Plaintiffs' motion for a preliminary injunction related to the statutory provisions. Based on the federal court's actions, Plaintiffs moved for dismissal of their lawsuit, and the court granted the motion.

          [¶7] Plaintiffs subsequently filed this state court action. According to their complaint, after passage of 2011 Wis. Act 217, PPW

ceased offering abortion-inducing medication to medically eligible patients at all three clinics out of fear that [under Wis. Stat. § 253.105(2)] PPW and its medical providers would be exposed to potential criminal penalties, civil liability, and disciplinary [367 Wis.2d 720] sanctions if they continued to provide the medications to patients in accordance with their established ... protocols.

         As to the voluntary consent provision in Wis. Stat. § 253.10(3), the complaint alleges this statute is ambiguous because it may, " but do[es] not on [its] face, provide that a physician's determination of voluntary consent ... is governed by a 'good faith' standard." Plaintiffs allege " [t]he statute ... appears to impose strict civil liability and civil forfeiture penalties on a physician who fails to correctly ascertain another person's subjective state of mind, regardless of the physician's good-faith attempt to ascertain that the patient's consent was in fact voluntary."

          [¶8] In the present action, Plaintiffs sought an injunction against Defendants and a declaratory judgment construing the two challenged provisions of 2011 Wis. Act 217 in the manner to which Defendants had agreed in the stipulation in the federal lawsuit. Defendants moved to dismiss this action on the ground that the complaint failed to state a claim upon which relief could be granted. The circuit court denied the motion. Plaintiffs subsequently moved for summary judgment, entry of a declaratory judgment, and a permanent injunction. The circuit court granted Plaintiffs' motion for summary and declaratory judgment, interpreting Act 217 in the manner Plaintiffs requested, but denied Plaintiffs' request for an injunction. Defendants appeal.[4] Additional facts are set forth as necessary.

         [367 Wis.2d 721]Discussion

          [¶9] Our review of a circuit court's decision on summary judgment is de novo. Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶ 11, 318 Wis.2d 622, 768 N.W.2d 568. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. " The grant or denial of a declaratory judgment is addressed to the circuit court's discretion. However, when the exercise of such discretion turns upon a question of law, we review the question independently of the circuit court's determination." Olson v. Farrar, 2012 WI 3, ¶ 24, 338 Wis.2d 215, 809 N.W.2d 1 (citation omitted). The interpretation of a statute is a matter of law we review de novo. State v. Simmelink, 2014 WI App 102, ¶ 5, 357 Wis.2d 430, 855 N.W.2d 437.

          [¶10] A declaratory judgment is " fitting" when a controversy is justiciable.

Page 608

Olson v. Town of Cottage Grove, 2008 WI 51, ¶ 29, 309 Wis.2d 365, 749 N.W.2d 211. A matter is justiciable if the following four factors are satisfied:

(1) The matter is a controversy in which a claim of right is asserted against one who has an interest in contesting it;
(2) The controversy is between persons whose interests are adverse;
(3) The party seeking declaratory relief has a legal interest in the controversy, that is to say a legally protectible interest; and
(4) The issue involved in the controversy is ripe for judicial determination.

[367 Wis.2d 722] See id.

         Medication Abortions

          [¶11] As noted, Wis. Stat. § 253.105(2) states in relevant part: " No person may give an abortion-inducing drug to a woman unless the physician who prescribed, or otherwise provided, the abortion-inducing drug for the woman ... (b) [i]s physically present in the room when the drug is given to the woman." (Emphasis added.) Plaintiffs' professed concern, as they state it on appeal, is that

" given" could mean " dispensed" to the woman, i.e., when the drugs are transferred to the woman's possession. Alternatively, " given" could mean " administered," i.e., when the drugs are introduced into the woman's body by ingestion or other means.
... Under their established protocol for medication abortions, the Plaintiffs were in compliance with the statute if the phrase " when the drug is given to the woman" means " when the drug is dispensed to the woman" or " when the drug is transferred to the woman's possession." However, if the phrase " when the drug is given to the woman" means " when the drug is administered," then a physician carrying out [PPW's] standard protocol arguably would violate the statute, because the physician is not physically present when the second drug, Misoprostol, is administered. Rather, under the protocol, the woman self-administers the Misoprostol by buccal absorption at home on the following day.

         We agree with Defendants' contention on appeal that Plaintiffs' challenge to § 253.105 is not justiciable. We reach this conclusion based on Plaintiffs' failure to show how, under their undisputed standard protocol [367 Wis.2d 723] for medication abortions, they possibly could be in violation of the statute under either of their suggested interpretations of " give" /" given."

          [¶12] " When the same term is used repeatedly in a single statutory section, it is a reasonable deduction that the legislature intended that the term possess an identical meaning each time it appears." Coutts v. Wisconsin Ret. Bd., 209 Wis.2d 655, 668-69, 562 N.W.2d 917 (1997); see also General Castings Corp. v. Winstead, 156 Wis.2d 752, 759, 457 N.W.2d 557 (Ct.App. 1990):

We reject an interpretation which ascribes different meanings to the same word as it variously appears in a statute unless the context clearly requires such an approach. This is all the more true where, as here, the word reappears in the same sentence of the statute at issue. Such an interpretation borders on the unreasonable. We must avoid such interpretations.

         Thus, whichever meaning of " give" /" given" the legislature may have intended-- transferring an abortion-inducing drug to a pregnant woman's possession or actually introducing the drug into the woman's body--we must conclude it intended the term to have the same ...

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