Feb. 25, 2016 – A state appeals court has ruled (2-1) against Planned Parenthood of Wisconsin (PPW), which challenged provisions of an abortion-related law passed in 2011, but allayed some of PPW’s fears about criminal penalties and civil liability.

The law, Wis. Stat. section 253.105(2), states that a person may not “give” abortion-inducing drugs to a woman unless the physician who prescribed or provided the drug is physically present in the room when the drug is “given” to the woman. Persons who violate this law are subject to criminal penalties and civil liability.

PPW noted that patients who receive drugs to induce abortions receive two drugs in the form of pills. One is “given” in the presence of a physician and taken orally right then.

The patient receives the second drug to be self-administered 24 hours later, outside the physician’s presence. PPW feared this practice could give rise to criminal penalties and civil liability if the doctor is not present when the patient takes the second drug. This fear led PPW to stop giving abortion-inducing medication at three clinics in Wisconsin.

PPW wanted the court to rule that the statute is satisfied when the patient is handed the pills at the clinic, not when they are actually introduced into the body.

PPW also raised concerns that section 253.10 – which requires doctors to determine whether the patient voluntarily consented – could give rise to strict liability even if if the doctor made a “good faith” effort to determine that the patient voluntarily consented.

PPW wanted the court to rule that physicians satisfy the voluntary consent statute so long as they make a “good faith determination” that the woman voluntarily consented.

After PPW filed an action in federal district court, the same defendants agreed to the interpretations PPW was seeking. But the court did not enter a judgment incorporating the stipulation, opting to move ahead on a motion for preliminary injunction.

Plaintiffs obtained a dismissal and filed in state court. The Dane County Circuit Court granted PPW summary and declaratory judgment, interpreting in favor of PPW.

The defendants – including state Attorney General Brad Schimel, and Dane County District Attorney Ismael Ozanne, representing a class of all Wisconsin district attorneys – appealed on the grounds that plaintiff PPW’s entire action was nonjusticiable.

In Planned Parenthood of Wisconsin Inc. v. Schimel et al., 2014AP2085 (Feb. 24, 2016), a three-judge appeals court panel (2-1) agreed with defendants and reversed.

The majority noted that lawsuits must be justiciable to proceed – they must involve a controversy with claims by a party with a legally protectable interest, the interested parties must be adverse, and the issue involved must be ripe for judicial determination.

The majority ruled that the issues are nonjusticiable because, under PPW’s stated protocol for giving abortion-inducing drugs, there is no way to be in violation of the statute, and PPW did not change its practices in light of the voluntary consent law.

Giving the Drugs

The first drug is given to the patient in the presence of the physician and the patient takes the drug right then. There is no problem there, the majority noted.

On the second drug, which is provided to a patient to be taken later, there is no problem either, because in that case the woman goes home and “gives” the drug to herself.

“To be potentially liable … a physician or other clinic personnel must ‘give an abortion-inducing drug’ to a woman – i.e., introduce the drug into her body, according to Plaintiffs’ alternative meaning of ‘give’/’given,’” wrote Judge Mark Gundrum.

Judge Gundrum said PPW did not explain how a physician or other clinical personnel could be liable if the patient is giving herself the drug, introducing it into her own body.

PPW had no standing, the majority explained, “because they have failed to demonstrate that their undisputed protocol for medication abortions could place them in any potential jeopardy under either of their proposed interpretations of ‘give’/’given.”

Voluntary Consent

The issues PPW raised on voluntary consent under section 253.10(3) were also nonjusticiable, the majority concluded, based on lack of claimed injury.

The majority noted that despite the voluntary consent law, PPW did not cease performing surgical abortions after Wisconsin passed the 2011 law. Thus, unlike the abortion-inducing drugs issue, PPW failed to show that it suffered any harm by the law.

“Plaintiffs state they have ‘asserted a sufficiently direct threat of personal detriment to give rise to standing for a declaratory judgment; however, this is precisely what they have failed to show,” wrote Judge Gundrum, joined by Judge Paul Reilly.

The majority also noted that defendants have essentially conceded that the voluntary consent statute, if a case arose, would be governed by a “good faith” standard.

“Relatedly, Plaintiffs do not identify and we have been unable to locate in the record a clear indication that they would conduct themselves in any different manner depending on a court’s interpretation of the voluntary consent language; again, indicating they are not detrimentally affected by the ‘good faith’ issue they raise,” Judge Gundrum wrote.

Dissent

Chief Appeals Court Judge Lisa Neubauer dissented. She said the issues are justiciable because PPW’s conduct is potentially sanctionable, among other reasons.

On section 253.105(2), requiring a physician’s presence when giving abortion-inducing drugs, Judge Neubauer said “reasonable people could disagree with the majority’s statutory interpretation,” creating an ambiguity that should have been resolved.

“Given the ambiguity of the statute, Planned Parenthood has asserted a sufficiently direct threat to be afforded a declaratory judgment that clarifies its obligations under the statute,” Chief Judge Neubauer wrote.

She also dissented on the voluntary consent issue, concluding PPW still has legal rights to bring declaratory actions even if they continued their practices after the law passed.

“Neither the majority nor the Defendants point to any authority that a plaintiff must show that it stopped or changed its practices, potentially to wait years for the requested legal relief, in order to receive a declaratory judgment,” she wrote.

“To so hold defeats the very purpose of declaratory judgments.” Judge Neubauer noted that a threat of liability is enough to obtain declaratory relief on ambiguous statutes.