PLANNED PARENTHOOD OF WISCONSIN, INC. AND FREDRIK BROEKHUIZEN, M.D., PLAINTIFFS-RESPONDENTS,
BRAD D. SCHIMEL, ISMAEL OZANNE, JAMES BARR, MARY JO CAPODICE, GREG COLLINS, RODNEY A. ERICKSON, SURESH K. MISRA, KENNETH B. SIMONS, TIMOTHY SWAN, SRIDHAR VASUDEVAN, TIMOTHY W. WESTLAKE, MICHAEL PHILLIPS, RUSSELL YALE, ROBERT ZONDAG AND CAROL OGLAND, DEFENDANTS-APPELLANTS, MITCHELL WILLIAMS, INTERVENOR
on Briefs June 11, 2015
from an order of the circuit court for Dane County: RICHARD
G. NIESS, Judge. Cir. Ct. No. 2013CV478.
Reversed and cause remanded with directions.
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.
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.
Neubauer, C.J., Reilly, P.J. and Gundrum, J. NEUBAUER, C.J.
Wis.2d 715] GUNDRUM, J.
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), 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. We agree with Defendants and reverse.
[¶2] The following statutory provisions are
of import to this appeal. Wisconsin's uniform declaratory
judgments act, Wis. Stat. § 806.04, provides in relevant
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:
(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
(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 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
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.
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. Additional facts are set forth as
[¶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.
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
(3) The party seeking declaratory relief has a legal interest
in the controversy, that is to say a legally protectible
(4) The issue involved in the controversy is ripe for
[367 Wis.2d 722] See id.
[¶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
... 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.
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
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
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