Karlin v. Foust
| Decision Date | 19 June 1997 |
| Docket Number | No. 96-C-0374-C.,96-C-0374-C. |
| Citation | 975 F.Supp. 1177 |
| Parties | Elizabeth KARLIN, M.D.; Planned Parenthood of Wisconsin, Inc.; Gary T. Prohaska, M.D.; Dennis D. Christensen M.D.; and Summit Women's Health Organization, on behalf of themselves and their patients seeking abortions, Plaintiffs, v. C. William FOUST, in his official capacity as district attorney for Dane County and a representative of the class of all district attorneys in Wisconsin; James E. Doyle, in his official capacity as Attorney General of Wisconsin; E. Michael McCann, in his official capacity as district attorney for Milwaukee County; James Chambers, Michael Mehr, B. Ann Nevaiser, James Esswein, Rudolfo Molina, W.R. Schwartz, Mikki Patterson, Sidney Johnson, Sandra Makhorn, Pablo Pedraza, Glenn Hoberg, Wanda Roever, Ronald Grossman, and Darold Treffert, in their official capacities as members of the Wisconsin Medical Examining Board; Elaine August, Timothy D. Burns, Bonnie M. Creighton, Ruth E. Lindgren, Pamela A. Maxon, Lorraine A. Norem, Roberta P. Overby, McArthur Weddle, and Ann Brewer, in their official capacities as members of the Wisconsin Board of Nursing; Muriel Harper, Virginia Heinemann, Cornelia Hempe, Douglas Knight, and Anita Kropf, in their official capacities as members of the social worker section of the Wisconsin Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors; Joseph Leean, in his official capacity as Secretary of the Wisconsin Department of Health and Family Services; and K.B. Piper, in his official capacity as Administrator of the Division of Health of the Wisconsin Department of Health and Family Services, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Bruce Olsen, Asst. Atty. Gen., Madison, WI, for C. William Foust, James E. Doyle, James Chambers, Michael Mehr, B. Ann Nevaiser, James Esswein, Rudolfo Molina, W. R. Schwartz, Mikki Patterson, Sidney Johnson, Sandra Makhorn, Pablo Pedraza, Glenn Hoberg, Wanda Roever, Ronald Grossman, Darold Treffert, Elaine August, Timothy D. Burns, Bonnie M. Creighton, Ruth E. Lindgren, Pamela A. Maxon, Lorraine A. Norem, Roberta P. Overby, McArthur Weddle, Ann Brewer, Muriel Harper, Virginia Heinemann, Cornelia Hempe, Douglas Knight, Anita Kropf, Joseph Leean, K.B. Piper.
E. Michael McCann, Milwaukee County Dist. Atty., Milwaukee, WI, for E. Michael McCann.
The state of Wisconsin has enacted a law that requires physicians who provide abortions to give their patients specific oral and printed information at least 24 hours before performing an abortion. The question this case raises is whether the new law will make it so difficult for women in Wisconsin to exercise their constitutionally protected rights to obtain abortions as to constitute an "undue burden" as articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Although the law intrudes upon the pregnant woman's constitutional liberty "to decide matters of the highest privacy and the most personal nature," id. at 915, 112 S.Ct. at 2840 (Stevens, J., concurring in part and dissenting in part), by "inject[ing] into a woman's most personal deliberations [the state's] own views of what is best," id. at 916, 112 S.Ct. at 2840, the Supreme Court's holding in Casey requires the conclusion that the majority of Wisconsin's law is constitutional because most of the restrictions it imposes do not constitute undue burdens upon a woman's right to choose whether to continue or terminate her pregnancy.
On May 1, 1996, the day after the governor signed into law Assembly Bill 441, a law regulating the process by which physicians obtain the voluntary and informed consent of their patients seeking abortions, plaintiffs Elizabeth Karlin, M.D., Planned Parenthood of Wisconsin, Inc., Gary Prohaska, M.D., Dennis Christensen, M.D., and Summit Women's Health Organization filed this civil action, asserting that AB 441 violates a number of rights guaranteed to them and to their patients by the United States Constitution. Plaintiffs added a request for a temporary restraining order and a preliminary injunction enjoining defendants from enforcing AB 441. Their request for a temporary restraining order was granted after a hearing held on May 6 and extended by agreement of the parties until a decision could be reached on plaintiffs' motion for a preliminary injunction, which was converted to a motion for permanent injunction and heard in October 1996.
AB 441 enacts a number of changes to the Wisconsin laws pertaining to informed consent procedures for abortion and it repeals and recreates the primary statute governing this topic, Wis. Stat. § 253.10.
Under the prior statute governing informed consent for abortions, Wis. Stat. § 253.10 (repealed 1996), the attending physician or a person assisting that physician had to verbally provide a woman seeking to obtain an abortion the following information: 1) whether she was pregnant; 2) the probable gestational age of the fetus; 3) the availability of public and private agencies and services offering birth control information and assistance if the woman chose not to have an abortion; 4) special guidance for minors seeking abortions if the woman was a minor; and 5) any particular risks associated with the woman's pregnancy and the abortion technique to be employed. § 253.10(1)(a). The attending physician or assistant had the option of informing women about the probable physical characteristics of the fetus at the time the abortion was to be performed. § 253.10(1)(c). If a woman requested information about the public and private agencies offering birth control information and assistance with pregnancy and childbirth, physicians and their assistants were required to provide this information. § 253.10(2). County departments in counties where abortions were provided were responsible for compiling the information and distributing it to abortion providers. Wis. Stat. § 46.245 (repealed 1996). (As with § 253.10, AB 441 repealed and recreated § 46.245). Before undergoing the abortion procedure, a woman had to sign a statement acknowledging that she had received the required oral information, been given the opportunity to receive the written information and consented freely and without coercion to the abortion. § 253.10(3). Gathering of informed consent was unnecessary if an emergency abortion was required because of an immediate threat and a grave risk to the life and health of the woman. § 253.10(4).
The new Wis. Stat. § 253.10 (1996) enacted by AB 441 makes a number of changes in the basic informed consent structure in place under the prior law. The statute is divided into eight sections: 1) legislative findings and intent; 2) definitions; 3) voluntary and informed consent; 4) hotline; 5) penalty; 6) civil remedies; 7) affirmative defense; and 8) construction.
In subsection (1), the legislature set forth its reasons for modifying informed consent procedures for abortion. Essentially, the legislature determined that many women seeking abortions do not have full knowledge of the medical and psychological risks of abortion and need more extensive information in order to make an informed choice; most women receiving elective abortions do not have a prior patient-physician relationship with the doctor providing the abortion and lack an opportunity to receive personal counseling from that doctor about their decision; and a reasonable waiting period is necessary to ensure that women have a full opportunity to give their voluntary and informed consent before electing to undergo an abortion.
In subsection (2), the legislature defined a number of terms. Those relevant to this case are the following:
(a) "Abortion" means the use of an instrument, medicine, drug or other substance or device with intent to terminate the pregnancy of a woman known to be pregnant or for whom there is reason to believe that she may be pregnant and with intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.
(d) "Medical emergency" means a condition, in a physician's reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.
(f) "Qualified person assisting the physician" means a social worker certified under ch. 457, a registered nurse or a physician assistant to whom a physician who is to perform or induce an abortion has delegated the responsibility, as the physician's agent, for providing the information required under sub. (3)(c)2.
(g) "Qualified physician" means a physician who by training or experience is qualified to provide the information required under sub. (3)(c)1.
Section 253.10(3) sets up the overarching structure of the new informed consent provisions. It provides that an abortion may not be performed unless the woman has given voluntary and informed written consent to the procedure. § 253.10(3)(a). Consent is voluntary only if it is given "freely and without coercion by any person." § 253.10(3)(b). Unless a...
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