This appendix expands on my discussion, in Part IV, of the constitutionality of §939.75(2)(b)(1) of the Wisconsin Code if the Personhood Amendment passes AND Roe v. Wade is overturned by the Supreme Court at some future date AND abortion-rights advocates are able to have §940.04 struck down on an equal protection claim under the Personhood Amendment AND it is struck down in its entirety, rather than (as the Wisconsin Legislative Bureau suggested) in part. Obviously, this appendix is highly speculative. My series on Wisconsin Personhood began in Part I.
Before we say any more about 939.75(2)(b)(1), let’s remind ourselves, for the sake those readers who did not skip directly to the appendix, how 940.04 got struck down, giving us Wisconsin Right-to-Life’s potential Nightmare Scenario. This is from the white paper, page 12:
4. If adopted, what impact would the proposed state constitutional amendment have on § 940.04?
The Personhood Amendment does not present the same obstacles to renewed enforcement as the 2006 proposal. In the context of the proposed amendment as a whole, however, the reference to all people (including children prior to birth) being “equally” free raises troublesome difficulties in this regard.
The proposed amendment says that the inherent rights of all people include the right to life. Is the right to life part of the freedom that unborn children share equally with everyone else? If so, does the fact that it is shared “equally” mean that the legal protection of that right provided by the criminal law must be the same for unborn children as it is for everyone else? If the answers to these questions are “Yes,” then prescribing a lesser penalty for intentionally and deliberately killing a child three months before birth than for intentionally and deliberately killing a child sixty minutes after birth – which is one of the effects of § 904.04 – would conflict with that prescription. (This argument has been raised repeatedly over the past forty years and, in our judgment, it would be imprudent not to take it seriously. See, e.g., Chemerinsky, “Rationalizing the Abortion Debate: legal Rhetoric and the Abortion Controversy,” 31 Buff. L. Rev. 107, 112-14 & nn. 27, 38 (1982); see also Roe v. Wade, 410 U.S. 113, 157 n.54 (1973).)
A defendant seeking to assert this position in a criminal prosecution under § 940.04 would face serious standing issues. An abortionist or abortion-seeker pursuing injunctive relief, however, would not face that obstacle. Such a challenger could contend that the dramatic difference in treatment between intentionally killing people before and after birth simply cannot be squared with the amendment’s prescription of equality.
To be sure, that argument would confront a formidable substantive objection. The law routinely treats homicides differently depending on the circumstances under which they are committed. Murder for hire, to take an obvious example, is punished more harshly than murder committed impulsively at the climax of a heated argument. Judges would ask the challengers why the differentiation implicit in § 940.04 is not simply one more example of this commonplace approach.
The challengers’ answer, presumably, would be that the differentiation here is not based on circumstance but on the status of the victim; or to put it another way, on the precise “circumstance” that the amended constitutional language would make expressly ineligible for consideration. That rejoinder might fail – but it might succeed. Its prospects for success are certainly not trivial. And if it did succeed, the results would be literally fatal for thousands of unborn children in Wisconsin.
We have presumed for the sake of discussion that the challengers overcame their standing issues, made the argument suggested here, and that their rejoinder has succeeded. Under Personhood, 940.04 is ruled unconstitutional and struck down in toto. We now turn to 939.75(2)(b)(1), which should have been introduced into the deliberations by the defenders of 940.04. That provision states:
(b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:
1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13, 940.15 and 940.16 to an induced abortion…
Our first question: does 939.75(2)(b)(1) establish a “dramatic difference in treatment between intentionally killing people before and after birth” in a manner similar to that of 940.04? Yes. Indeed, the difference in treatment is even more dramatic, as I observed in part IV: 940.04 merely reduced a Class A felony (murder) to a Class E or H felony (embezzlement) when the victim is unborn. Once 940.04 is gone, 939.75(2)(b)(1) reduces a class A felony (murder) to not a crime at all when the victim is unborn. Clearly, our counter-challenge has merit.
Judges would likely ask us the same question they asked Planned Parenthood & Co.: since the law “routinely treats homicides differently depending on the circumstances under which they are committed, why is the differentiation implicit” in 939.75(2)(b)(1) “not simply one more example of this commonplace approach”?
The abortion industry’s answer, with respect to 940.04, was that “the differentiation here is not based on circumstance but on the status of the victim; or to put it another way, on the precise ‘circumstance’ that the amended constitutional language would make expressly ineligible for consideration.” Can we use the same answer to this question that the abortion industry did?
It would seem so. Based on the language of both 940.04 and 939.75(2)(b)(1) , the act which allegedly encapsulates an “implicit differentiation” is almost identical. The penalty for “abortion”, in 940.04, is generally applied to “any person who intentionally destroys the life of the unborn child.” (There is an exception for the mother herself, but this is merely a restatement of 940.13. It is therefore equally applicable to both statutes.) In 939.75, “induced abortion” is defined as “the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an 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.” While the words are different, both definitions are, in actual fact, nearly identical: the first refers to killing an unborn child; the second to killing an unborn child in a medical procedure. Therefore, the implicit differentiation – which is to say, the statutes’ specific and prejudicial deprivation of fetal rights – is essentially identical. If the court agrees, it would have no choice but to make the amended constitutional language equally applicable to 939.75(2)(b)(1) as to 940.04.
However, while that rejoinder might succeed, it might fail. The court could hold that 939.75(2)(b)(1) does not discriminate based on the status of the victim as an unborn child, but rather based on the circumstance of the killing as part of a medical procedure. In this case, the next natural course would be to examine 939.75(2)(b)(1) under a rational basis analysis. Pro-lifers would assert that the abortion exception in 939.75(2)(b)(1) bears no rational relationship to any state purpose other than to provide for the deprivation of the personal right to life by the strong against the weak, and therefore that the law should be struck down.
The laxity of rational basis review permits the opposition to submit several possible replies. They could argue that, while the Wisconsin Constitution concededly does not guarantee the right of a pregnant woman to establish and maintain a zone of privacy between herself and her doctor (remember, this is post-Roe v. Wade), establishing such a zone is nevertheless within the legitimate interests of the state of Wisconsin. Opening that physician-patient relationship (not to mention the details of the mother’s personal life) to potential prosecution in a murder investigation every time an unborn child dies, for any reason, would make any zone of confidential medical and emotional consultation impossible. Moreover, Wisconsin law holds that it is an invasion of privacy to “intrude… in a place that a reasonable person would consider private” (955.50). Few places more private can be imagined, Planned Parenthood’s lawyers would argue, than the interior of a woman’s own uterus. Therefore, it is rational for the state to exclude from criminal law all cases which may, if prosecuted, tend to compromise this “zone of personal privacy.” This exclusion would include all criminal cases alleging induced abortion.
The response to the “zone of privacy” argument would presumably point out that the privilege of physician-patient privacy, which is already defined and defended in the Wisconsin Code at §905.04, is not implicated by any matter before the court. That statute neither affirms nor implies a class of crimes which the state cannot or should not prosecute; on the contrary, the statute and its judicial history in Wisconsin expressly contemplate the possibility that a physician-patient relationship will from time to time be at the center of a criminal prosecution. It provides both physician and patient with certain protections and obligations in such a proceeding; it is not injured by permitting such a procedure to occur. Further, the “right to privacy” – or, as Justice Brandeis put it, “the right to be let alone” – does not apply to actions which do material harm to someone other than the actor or actors. Such acts are, by definition, not private, and therefore not susceptible to the protection of privacy. While Wisconsin certainly has a legitimate interest in protecting the privacy of its citizens, the legitimate “zone of personal privacy” has never been understood under Wisconsin law to include a right to commit violent felonies against another person while the criminal justice system turns a blind eye. Following the challengers’ novel interpretation, the Wisconsin legislature could, in order to further the state’s legitimate interest in the right to bear arms, exclude any murderer from prosecution – provided he committed the murder with a lawfully-owned firearm. No court would sustain such an absurdity as rational. The government of Wisconsin lacks the authority to retreat from its constitutional responsibility to “secure these… inherent rights” (Article I, Section 1) on such flimsy rationalizations, which do not even rise to the dignity of pretext.
Alternatively, the challengers could argue that 939.75(2)(b)(1)’s exclusion of certain medical procedures from prosecution under murder statutes is an appropriate and prudent response to the possibility that doctors could otherwise be prosecuted for accidents and other innocent, if tragic, occurrences that take place, from time to time, in the practice of medicine. In this way, 939.75(2)(b)(1) simply discriminates on the basis of a particular medical practice which just happens to be the deliberate killing of a human being, rather than on the basis of their status as unborn humans per se. Unfortunately for this argument, the innocent circumstances described are already fully excluded by the much more narrowly-tailored, precise 939.75(2)(b)(2). Thus, it is hard for me to see this argument going anywhere.
In any case, the pro-lifers attacking 939.75(2)(b)(1) in the alternative would have an ace in the hole. So far, we’ve discussed the challenge to 939.75(2)(b)(1) on rational basis terms. However, this is not just any equal protection case. 939.75(2)(b)(1) is not just a minor burden to those who fall victim to it; they aren’t merely denied the right to serve in the military or forced to pay a special tax. They are deprived of their very lives. The right to life is one of a precious few which are considered fundamental rights in American law. It is enumerated in Amendment XIV of the U.S. Constitution and applied directly to the states. (Its fundamental status is verified in Yick Wo v. Hopkins (1886) and Johnson v. Zerbst (1938)). When a law places a burden upon a fundamental right, it triggers what is known as strict scrutiny review (NAACP v. Alabama (1958), Massachusetts Bd. of Retirement v. Murgia (1975)). I am citing federal cases, but the Wisconsin Supreme Court has explicitly tethered its equal protection and strict scrutiny analysis to the parallel federal interpretations (see, e.g., Reginald D. v. State (1995)), so they are no less applicable here.
Strict scrutiny review shifts the burden of proof from a law’s challenger to the party defending the law (normally the government), because the judiciary considers laws that infringe certain core liberties or attack certain minority groups “immediately suspect”, and requires a high standard of proof to save those laws from being struck down as unconstitutional under equal protection clauses. That standard of proof involves three points: the law must be justified by a “compelling government interest”; it must be “narrowly tailored” to achieve that interest; and it must use the “least restrictive means” for achieving that interest. The court is free to question the motivations behind discriminatory laws under strict scrutiny analysis – and strike them down if the motivation is discrimination itself. It is not an easy standard for a law to survive; the old saw about strict scrutiny is “strict in theory; fatal in fact.” As a strict scrutiny precursor, Yick Wo v. Hopkins (1886), put it [emphasis mine]:
When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power… the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws, and not of men.” For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
If strict scrutiny is applied, it is difficult to imagine a path to survival for 939.75(2)(b)(1), especially given our presumption that 940.04 has already been struck down on similar grounds. The challengers’ best shot would be to argue that a statutory limitation on criminal charges does not inherently burden a right, and therefore strict scrutiny should not apply. In support of this claim, they could offer a variety of existing exceptions to murder statutes: the right to deliberately kill in self-defense, the right to deliberately kill in the course of a just war, the right to deliberately kill in order to prevent a felony, and mitigation of punishment if there was “adequate provocation” for the killing.
However, the rejoinder in this instance is reasonably persuasive: a statutory limitation does burden a right if its effect, in law or in fact, is to deprive of its fundamental rights a “discrete and insular minority” which lacks the agency to make use of “those political processes ordinarily to be relied upon to protect minorities” (U.S. v. Carolene Products (1938)) – such as unborn children, who cannot vote – without reciprocal cause. For example, one might lose the normal protection of his right to life through his decision to rob a bank; another by fighting for the enemy in a war; yet another by placing someone “in imminent danger of death” (as 940.01 puts it). No such reciprocal cause is offered, or indeed possible, in the case of an innocent fetus in a normal pregnancy. Therefore strict scrutiny must be engaged, and 939.75(2)(b)(1) must be struck down.
Since 939.75(2)(b)(1)’s detractors need only succeed on any one of these lines of argument, and since it has, in my opinion, the better of all of them, it seems more likely than not that the effort will succeed. In the unlikely event that 940.04 is struck down as unconstitutional under Personhood, it is likely, in my opinion, that the Alternative Scenario would follow from any successful challenge to 939.75(2)(b)(1), whether coincident with the decision on 940.04 or pursued at a later date.