State v. Black

526 N.W.2d 132, 188 Wis. 2d 639, 1994 Wisc. LEXIS 125

• Court: Wisconsin Supreme Court
• Decided: December 14, 1994
• Docket: 92-2325-CR
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

Glenndale Black (Black) was charged under sec. 940.04(2)(a), Stats., for destroying the life of his unborn quick child by violently assaulting his wife five days prior to her anticipated delivery date. The statute states, in relevant part, that any person other than the mother who "intentionally destroys the life of an unborn quick child" may be imprisoned not more than 15 years. The alleged assault consisted of grabbing her by the hair, pulling her backward onto the sofa, and punching her in the abdomen twice, the second time much harder than the first, and causing her a great deal of pain. Despite his wife's pleas, Black allegedly refused to call for help or allow his wife to seek help for 15 minutes until she screamed from abdominal pain. When she was finally transported to the hospital, a full term baby was delivered dead via cesarian surgery. The attending physicians indicated that the baby had bled to death after the placenta was detached from his mother's uterine wall. They further indicated that this injury was consistent with the application of blunt force trauma, such as a punch, to the mother's abdomen. The issue is whether Black may be charged under the above statute.

We conclude that the words of the statute could hardly be clearer.¹ The statute plainly proscribes feti-cide, the action alleged of Black. Because the circuit court held otherwise, we reverse the order of the circuit court and remand for proceedings consistent with this opinion.

We begin with a complete recitation of the alleged facts as found in the complaint. The complaint serves as the only source of factual material in the record. At the time of the alleged assault, Glenndale and Tracy Black had been married 13 months. Tracy was pregnant with Black's child and due to deliver five days later, a fact known to Black. Black was apparently unhappy with Tracy's pregnancy and initially told her she would have to get an abortion. Additionally, the unborn child was the subject of several arguments between Tracy and Black, and on one occasion Black allegedly threatened Tracy stating, "if I don't get [my son] you won't have him either."

On February 8, 1992, Black and Tracy argued in their home. During the course of the argument, Black allegedly grabbed Tracy by the hair, pulled her backward onto the sofa, and punched her in the abdomen causing her pain. Black then punched Tracy a second time in the abdomen. According to Tracy, the second punch was much harder than the first and caused her a great deal of pain.

Immediately thereafter, Tracy realized that she needed medical attention and pleaded with Black to call for help or to allow her to seek help. Unpersuaded, Black detained Tracy for 15 minutes until she screamed from abdominal pain. At that point, Black arranged for help to be called. Tracy was subsequently transported to St. Francis Hospital.

At the hospital, a full-term boy was delivered dead via cesarian surgery. The baby's head was bruised, and the placenta was detached from Tracy's uterine wall. The delivery doctors opined that these conditions were consistent with blunt force trauma to the mother's abdomen. They believed the cause of death was exsan-guination: the baby bled to death.

Black was subsequently arrested and charged in an information with the statute in question, sec. 940.04(2)(a), Stats., as well as first-degree reckless injury and false imprisonment. Black filed a pretrial motion requesting the court to dismiss the count of the information alleging the violation of sec. 940.04(2)(a), on the grounds that it is unconstitutional. The circuit court dismissed the count on the basis that the statute did not proscribe the conduct that Black was accused of committing. The court, however, did not rule on the constitutionality of the statute. The State appealed and the court of appeals, in turn, certified the issue to this court.

We begin by underscoring what this case is not. This is not an abortion case in the sense of JRoe v. Wade. That is, this is not a case about a woman's right to terminate her pregnancy. This is not a case about a physician's right to perform the medical procedure of abortion. Further, this is not a case about when an unborn child "quickens" or becomes "viable."

This is a case about feticide. This is a case in which a man allegedly caused the death of an unborn quick child, due to be born in five days, by violently assaulting the unborn child's mother. Our duty in this case is simply to determine whether this assaultive behavior is proscribed by sec. 940.04(2)(a), Stats. We conclude that it is.

Section 940.04(2)(a), Stats., reads in relevant part:

(2) Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years:

(a) Intentionally destroys the life of an unborn quick child;....

The words of the statute are plain and unambiguous. They could hardly be clearer. They provide that anyone other than the mother who intentionally destroys the life of an unborn quick child may be imprisoned. It is alleged that Black intentionally destroyed the life of his unborn quick child when he assaulted his wife by punching her forcefully in the abdomen. There is no dispute that the Black's unborn child had "quickened" — the baby was due in five days. The words of the statute plainly proscribe his actions.

Black disagrees that sec. 940.04(2)(a), Stats., can be enforced against him. He contends that the statute was not intended to apply to feticide but to apply only in the context of consensual medical abortions. He cites the title of the statute, "abortion," as evidence. He also argues that sec. 940.04(2)(a) cannot be enforced against him because it was impliedly repealed when the legislature enacted sec. 940.15 in response to Roe v. Wade, 410 U.S. 113 (1973).

We disagree with his contentions. There can be no question that the legislature has the power to pass a feticide statute, and that such statute could include the language in sec. 940.04(2)(a), Stats. Even Black so conceded at oral argument. Section 940.04(2)(a) is just such a feticide statute. The statutory language clearly and simply proscribes the intentional destruction of a quick child. In the face of such plain and unambiguous language we must disregard the title of the statute. Wisconsin Valley Imp. Co. v. Public Serv. Comm., 9 Wis. 2d 606, 618, 101 N.W.2d 798 (1960). Consideration of a statutory title may be used only to resolve doubt as to the meaning of the statute. Id.

Further, when the legislature enacted sec. 940.15, Stats., it did not repeal sec. 940.04(2)(a). Instead, both secs. 940.04(2)(a) and 940.15 remained the law. Nothing persuades us that the legislature intended to impliedly repeal sec. 940.04(2)(a) when it enacted sec. 940.15. Implied repeal of statutes by later enactments is not favored in statutory construction. State v. Zawistowski, 95 Wis. 2d 250, 264, 290 N.W.2d 303 (1980).

Rather, when two provisions are similar, as arguably are secs. 940.04(2)(a) and 940.15, Stats., we must make every attempt to give effect to both by construing them together so as to be consistent with one another:

'A later and an older statute will, if it is possible and reasonable to do so, be always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, where such seems to have been the legislative purpose.' Jicha v. Karns, 39 Wis. 2d 676, 680, 159 N.W.2d 691 (1968), quoting McLoughlin v. Malnar, 237 Wis. 492, 496, 497, 297 N.W. 370 (1941).

In order to construe secs. 940.04(2)(a) and 940.15, consistently, we view each statute as having a distinct role. Section 940.15 places restrictions (consistent with Roe v. Wade) on consensual abortions: medical procedures, performed with the consent of the woman, which result in the termination of a pregnancy by expulsion of the fetus from the woman's uterus. Section 940.04(2)(a), on the other hand, is not an abortion statute. It makes no mention of an abortive type procedure. Rather, it proscribes the intentional criminal act of feticide: the intentional destruction of an unborn quick child presumably without the consent of the mother.

In light of our above construction, concerns raised by Black and by the American Civil Liberties Union (ACLU) that sec. 940.04(2)(a), Stats., could be used against a woman or her physician (in the context of performing an abortion) are unfounded. Section 940.04(2)(a) cannot be used to charge for a consensual abortive type of procedure. By its own terms it cannot apply to a mother. See also sec. 940.13 (abortion statutes cannot be enforced against any woman who obtains an abortion). Any attempt to apply sec. 940.04(2)(a) to a physician performing a consensual abortion prior to viability would be unconstitutional under Roe v. Wade. Further, any attempt to apply it to a physician performing a consensual abortion after viability would be inconsistent with the newer sec. 940.15 which limits such action and establishes penalties for it.

To conclude, we construe the plain language of sec. 940.04(2)(a), Stats., to apply to Black's alleged actions. It is a feticide statute only. Accordingly, we reverse the order of the circuit court and remand for proceedings consistent with this opinion.²

By the Court. — Order reversed and cause remanded for proceedings consistent with this opinion.

1 The dissent ignores plain rules of statutory construction: neither the legislative history nor the title of the statute can be used to create ambiguity in the statute. State v. Martin, 162 Wis. 2d 883, 897 n.5, 470 N.W.2d 900 (1991); Wisconsin Valley Imp. Co., 9 Wis. 2d at 618 (respectively). The legislative history of sec. 940.04(2)(a), Stats., is a maze of past statutes, amendments, repeals and recreations leading us to conclude that it offers no clearer indication of the legislature's intent than that indicated by the statute's own text.

2 The ACLU raised several arguments in its amicus brief which we here briefly address. First, the ACLU contends that sec. 940.04, Stats., is inapplicable because it was adjudged facially unconstitutional in Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), and Larkin v. McCann, 368 F. Supp. 1352 (E.D. Wis. 1974). The holding in Babbitz does not apply to sec. 940.04(2)(a). Babbitz only decided the constitutionality of sec. 940.04(1) and (5) in the context of a physician being prosecuted under these sections for performing an abortion. Larkin addressed only sec. 940.04(1) and relied on Babbitz. Moreover, this court is bound on the subject of federal law only by the pronouncements of the United States Supreme Court. State v. Webster, 114 Wis. 2d 418, 426 n.4, 338 N.W.2d 474 (1983). In Roe v. Wade, the Supreme Court held that abortion statutes could not be enforced "in contravention of a woman's right to a clinical abortion by medically competent personnel." Connecticut v. Menillo, 423 U.S. 9, 10 (1975). Enforcement of sec. 940.04 (2)(a) here has no such effect.

Second, the ACLU contends that sec. 940.04, Stats., as a whole, is properly construed to be limited to consensual abortions and was not intended for feticide. We address only sec. 940.04(2)(a) and make no attempt to construe any other sections of sec. 940.04. Additionally, we do not agree that sec. 940.04(2)(a) was to apply only to consensual abortions. The plain language of the statute evinces an intent otherwise.

Third, the ACLU argues that sec. 940.04(2)(a), Stats., violates Black's due process rights to fair notice of prohibited conduct. It contends that sec. 940.04 as a whole fell into disuse after Babbitz, 310 F. Supp. 293, and Larkin, 368 F. Supp. 1352, and that Black relied on those holdings. Neither case addressed the constitutionality of sec. 940.04(2)(a). Further, the plain language of sec. 940.04(2)(a) gave Black fair notice that his actions were proscribed by the law.

Finally, the ACLU argues that enforcement of sec. 940.04 (2)(a), Stats., violates the Separation of Powers, and contravenes public policy. We find no merit in either argument.