Planned Parenthood of Wisconsin, Inc. v. Schimel

2016 WI App 19, 877 N.W.2d 604, 367 Wis. 2d 712, 2016 Wisc. App. LEXIS 223

• Court: Court of Appeals of Wisconsin
• Decided: February 24, 2016
• Docket: No. 2014AP2085
• Status: Published

Opinions

GUNDRUM, J.

¶ 1. Plaintiffs-Respondents Planned Parenthood of Wisconsin, Inc. (PPW) and Dr. 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:

(1) Scope. Courts of record. . . shall have power to declare rights, status, and other legal relations ....

(2) 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.

¶ 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 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 ....

Background

f 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 aver-ments of PPW's then-director of abortion services, Amy Doczy, PPW's protocol for medication abortions is as follows: A pregnant woman is prescribed two medications, Mifeprex³ 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, misopro-stol, 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 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 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 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.

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. 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.

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 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 meaning both times it is used in Wis. Stat. § 253.105(2).

¶ 13. As Plaintiffs state, and Defendants agree, if "give"/"given" means " 'dispensed' to the woman, i.e., when the drugs are transferred to the woman's possession," then based upon PPW's undisputed protocol in which both Mifeprex and misoprostol are transferred to the woman's possession at the clinic in the presence of the physician, the physician or other clinic personnel transferring the drug to the woman would not be in violation of Wis. Stat. § 253.105(2). Significantly, however, Plaintiffs fail to explain how it is, based upon their protocol, that they reasonably could be found in violation of § 253.105(2) if "give"/"given" alternatively means "administered," i.e., "when the drugs are introduced into the woman's body by ingestion or other means." While it is undisputed the physician is not "present in the room" when the second drug, misoprostol, is introduced into the woman's body approximately twenty-four hours after the woman departs the clinic, the physician-presence requirement is only one of the elements that must be violated for potential liability. To be potentially liable under § 253.105(2), 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." Plaintiffs do not even attempt to explain how it is a physician or other clinic personnel could violate this first element if "give"/"given" means "when the drugs are introduced into the woman's body" when Plaintiffs themselves state throughout the record and their appellate briefing that it is the woman herself, not a physician or other clinic personnel, who "self-administers" the misoprostol by introducing it into her own body approximately twenty-four hours after receiving the drug. Thus, Plaintiffs' action misses the mark with regard to at least the third justiciability factor, see supra ¶ 10, which is "often expressed in terms of standing," see Lake Country Racquet & Athletic Club, Inc. v. Village of Hartland, 2002 WI App 301, ¶ 15, 259 Wis. 2d 107, 655 N.W.2d 189, 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."⁵ See id., ¶ 17 (plaintiff seeking declaratory judgment has burden to show risk of injury: "Here, Lake Country has failed to bring forth any facts demonstrating any pecuniary loss or the risk of any substantial injury to its interests.").

Voluntary Consent

¶ 14. Plaintiffs also sought a declaratory judgment with regard to Wis. Stat. § 253.10, arguing that a physician could be liable pursuant to § 253.10(3) if a woman claims following an abortion that her consent to the abortion had not been voluntary, even if the physician had previously made a good faith determination under the statute that her consent was in fact voluntary. In light of the record before us, we must agree with Defendants that Plaintiffs' action is also nonjusticiable with regard to § 253.10(3).

¶ 15. Arguing in their brief-in-chief that Plaintiffs lack standing, Defendants assert Plaintiffs' " conduct demonstrated their lack of any possible future injury," pointing out that " [a]fter [2011 Wis. Act 217] became effective, PPW did not cease performing surgical abortions" and " [n]o PPW physician changed his or her abortion practices."⁶ Defendants quote deposition testimony of PPW's president and chief executive officer stating that PPW "could comply with that part of the law [regarding voluntary consents] as it was not unclear in a way that the give portion was." We would expect that in response Plaintiffs would point us to admissible record evidence demonstrating that Wis. Stat. § 253.10(3) actually has some detrimental effect on them or creates genuine fear that Plaintiffs may be subjected to detrimental effects based on the voluntary consent language. Instead, in their very brief response to Defendants' standing arguments, Plaintiffs fail to specifically and directly address the voluntary consent statute at all, making specific reference to the medication abortion statute but only the most implicit reference to the voluntary consent provision.⁷ 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.

¶ 16. In a "Declaration" submitted by Plaintiffs in support of their motion for a preliminary injunction, Broekhuizen stated that in addition to performing surgical and medication abortions, as PPW medical director he oversaw "the provision of all medical care at all of PPW's centers, including the three centers at which abortions are provided." His oversight included "the development of medical protocols and procedures, supervision of all medical staff, etc." Of the forty-five numbered paragraphs in Broekhui-zen's declaration, the vast majority relate to medication abortions, with only the final three paragraphs directly addressing the voluntary consent provision. While Broekhuizen declared in those three paragraphs that Wis. Stat. § 253.10(3)(b) is "unclear" to him, nowhere did he identify how the law actually harms him or PPW.

¶ 17. Dr. Kathy King took over for Broekhuizen as PPW medical director sometime before February 2014. In her deposition, King stated that following enactment of 2011 Wis. Act 217, PPW suspended services of medication abortion due to the enactment of Wis. Stat. § 253.105; but when asked if any of her practices changed regarding voluntary consent following enactment of Wis. Stat. § 253.10(3) in Act 217, King stated: "No. I obtained the same voluntary consent as I had always." While she mentioned some general concerns of physicians, primarily as hearsay, regarding the voluntary consent law, when asked at the end of her deposition if she had "any fear of prosecution that a woman who did not, in fact, voluntarily consent to a surgical abortion could subject you to prosecution," King responded, "It's already a requirement on prior law that we obtain voluntary consent for surgical abortions. That has always been our standard of care and our practice and I did not feel threatened." (Emphasis added.)

¶ 18. Defendants — the parties Plaintiffs sought to enjoin — have expressed in the stipulation in the federal district court action and in their briefing on appeal their clear belief that Wis. Stat. § 253.10(3) "will be" governed by a good faith standard, as Plaintiffs desire. Indeed, they have gone so far as to state in their motion to dismiss before the circuit court in this case that they "do not contest. . . the hypothetical position asserted by [P]laintiffs," and that 2011 Wis. Act 217 "could never be enforced in the way [Plaintiffs] suggest," i.e., without a good faith standard. (Parentheses omitted.) While Defendants' assurances alone do not make this matter nonjusticiable in that it is not at all clear that any, much less all, of them would be bound by these statements or the stipulation in the federal action, they do further highlight the lack of a showing by Plaintiffs that they are detrimentally affected by § 253.10(3). We recognize that Plaintiffs do not need to await actual legal action or even a clearly expressed threat of legal action against them in order to have standing for a declaratory judgment. See Doe v. Bolton, 410 U.S. 179, 188 (1973); Borden Co. v. McDowell, 8 Wis. 2d 246, 256, 99 N.W.2d 146 (1959). Plaintiffs, however, do need to "bring forth . . . facts demonstrating . . . pecuniary loss or the risk of. . . substantial injury to [their] interests." See Lake Country, 259 Wis. 2d 107, ¶ 17. They have failed to do so. 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.

¶ 19. To have standing, Plaintiffs need to demonstrate they actually "have a personal stake in the outcome and [are] directly affected by the issue [] in controversy." Id., ¶ 15; see also Wis. Stat. § 806.04(2) (for a person to have determined a question regarding the construction or validity of a statute, his or her "rights, status or other legal relations" must be "affected" by the statute). They have failed to demonstrate this.

Conclusion

¶ 20. Based on this record, a declaratory judgment is inappropriate with regard to Wis. Stat. §§ 253.10 and 253.105. We conclude the circuit court erred in granting summary and declaratory judgment to Plaintiffs, and we reverse and remand to the circuit court for an entry of judgment dismissing Plaintiffs' complaint in its entirety.

By the Court. — Order reversed and cause remanded with directions.

1 All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.

2 Hereinafter, we refer to Defendants-Appellants collectively as "Defendants" and to Plaintiffs-Respondents as "Plaintiffs." We will refer to individual parties by their particular names or official positions as necessary.

3 We capitalize "Mifeprex" because it is a trade name.

4 Plaintiffs do not challenge on appeal the circuit court's decision denying their request for a permanent injunction.

5 As the Defendants point out, Affiliated Medical Services (Affiliated) also provides medication abortion services in Wisconsin. In an affidavit, Affiliated's director described the procedure Affiliated uses to perform medication abortions, which is nearly identical to the procedure used by Plaintiffs:

Medical abortions as provided at Affiliated involve two medications administered 6 to 72 hours apart. Both medications are given to the patient by the physician at the same time. The patient takes the first medication at that time, with instructions to administer the second medication to herself later at home.

The director averred that she studied 2011 Wis. Act 217 "at or about the time of its adoption in order to determine what, if any, changes in Affiliated's procedures would be necessary to comply with Act 217." She concluded that Affiliated's procedure "is fully consistent with Act 217."

6 This is in stark contrast to the fact that Plaintiffs ceased providing medication abortions following enactment of 2011 Wis. Act 217 out of a professed fear that they were at legal and professional risk as a result of Wis. Stat. § 253.105.

7 Plaintiffs state they filed their declaratory judgment action "to ensure that they would not be subjected to felony prosecution under an overly-broad construction of the statutes at issue for delivering evidence-based professional services to their patients." The voluntary consent provision has no criminal penalty associated with it, and thus the "felony" reference can only be to the medication abortion provision. See Wis. Stat. §§ 253.10(5) & (6), 253.105. Further, "evidence-based professional services" is a phrase Plaintiffs consistently use throughout the record in reference to medication abortions. Plaintiffs only implicitly reference the voluntary consent issue, doing so in the following statements: "The Plaintiffs' interests in conducting their business without fearing criminal, civil or regulatory sanctions are legally protectable interests" and "the Plaintiffs are the ones against whom the [2011 Wis.] Act 217 provisions operate, exposing Plaintiffs to the threat of felony and civil penalties if they fail to comply with the statutory mandates." (Emphasis added.) Additionally, in their statement of facts, Plaintiffs provide only facts and references to medication abortions and nothing with regard to the voluntary consent issue.