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STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY BRANCH 9

PLANNED PARENTHOOD OF WISCONSIN, et al., Plaintiffs, v. Case No. 13 CV 478 J.B. VAN HOLLEN, et al.,

Defendants.

DECISION AND ORDER GRANTING SUMMARY DECLARATORY

JUDGMENT AND DENYING PERMANENT INJUNCTION ________________________________________________________________

STATEMENT OF THE CASE

Plaintiffs Planned Parenthood of Wisconsin, Inc. and its medical director Frederik Broekhuizen, M.D. seek a declaratory judgment to resolve two issues of statutory construction arising under §§ 253.10 and 253.105, Stats., as enacted or amended by 2011 Wisconsin Act 217. These statutes impose certain requirements for the performance of abortions, including “medication abortions”, the violation of which can result in criminal prosecution and penalties, civil forfeitures, professional disciplinary actions, and civil liability. Plaintiffs also sue for injunctive relief prohibiting enforcement of the two statutes in a manner contrary to the declaration this court issues.

Defendants comprise the universe of officials authorized under Wisconsin law to prosecute crimes, or impose disciplinary sanctions on Wisconsin physicians for unprofessional conduct, including violations of state statutes and administrative code provisions. They are Wisconsin Attorney General J.B. Van Hollen, Dane County District Attorney Ismael Ozanne (representing a class of 71 elected district attorneys from each of Wisconsin's counties)1, and individual members of the Wisconsin Medical Examining Board in their official capacities.2

1 The class was certified without objection. 2 James Barr, Mary Jo Capodice, Greg Collins, Rodney A. Erickson, Jude Genereaux, Suresh K. Misra, Gene Musser, Sandra L. Osborn, Kenneth B. Simons, Timothy Swan, Sridhear Vasudevan, Sheldon A. Wasserman, and Timothy W. Westlake.

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Pending before the court is plaintiffs' motion for summary judgment relating to both declaratory and injunctive relief. The motion has been fully briefed and otherwise supported by the parties. Oral argument was held on April 24, 2014. The parties agree, as does the court, that the motion presents no material factual disputes requiring further evidentiary proceedings, only issues of law. Accordingly, it is ripe for disposition.

For the following reasons, the court GRANTS plaintiffs’ motion for

summary declaratory judgment but DENIES the requested injunction.

STATEMENT OF FACTS The following material facts are undisputed.

Planned Parenthood operates reproductive health care centers throughout Wisconsin, including three centers at which abortions are provided. It offers medication abortions to patients seeking to terminate pregnancy within 63 days of gestation.3 Medication abortions involve the oral administration of two separate drugs, mifepristone (brand name Mifeprex) and misoprostol. Under the medical procedure followed by Planned Parenthood and, indeed, nationwide, a physician prescribes and dispenses both drugs to the patient during the patient's second appointment at the clinic. The patient ingests the first drug Mifeprex at the clinic and is directed to self-administer the second drug misoprostol at home 24 hours later, by placing it between her cheek and gum.

Section 253.105 (2), Stats., as enacted by 2011 Wisconsin Act 217, reads: 2) 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: (a) Performs a physical exam of the woman before the information is provided under s. 253.10(3)(c)1. (b) Is physically present in the room when the drug is given to the woman.

(Emphasis added.)

Under § 253.105 (3), any person who violates the above statute, other than the "woman to whom an abortion-inducing drug is given", is guilty of a Class I felony, punishable by prison, fines, court costs, surcharges, etc. Civil remedies, including compensatory and punitive damages, are available against intentional or reckless violators of the statute under sub. (4), with certain exceptions not material to this case.

3 More than 1100 medication abortions were performed by Planned Parenthood facilities in 2011, over 70% of the total medication abortions in Wisconsin that year.

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The statute provides no express definition of "given" as applicable to the requirement that the physician be "physically present in the room when the drug is given to the woman." (Boldface added.) Does it mean simply handed to the woman, i.e. merely dispensed to her? Or does it mean actually administered to her, i.e., ingested by the woman, or otherwise introduced into her body while the physician is physically present in the room? In short, what conduct is criminalized?

Additionally, Act 217 enacted a new requirement that the physician

performing or inducing an abortion "shall determine whether the woman's consent is, in fact, voluntary", that is, "given freely and without coercion by any person." § 253.10 (3) (b), Stats. The 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." Id. Adherence to the statutory procedure for informed consent creates a rebuttable presumption that the patient's consent is informed but there is no presumption that consent to an abortion is voluntary. § 253.10 (3) (e), Stats. Violation of these "voluntary consent" provisions exposes the offending physician to forfeitures up to $10,000, and civil liability. § 253.10 (5) and (6), Stats.

The "voluntary consent" provisions do not address the mens rea, if any,

applicable to the imposition of penalties. Is there strict liability such that a physician is subject to forfeitures and civil liability where, despite the physician's best efforts and strict adherence to the statutory procedure, the patient's informed consent is subsequently revealed to be non-consensual? Or is the physician shielded from liability by employing the statutorily-mandated procedure and making a good faith determination that the patient had, in fact, consented voluntarily?

Because of their concerns over what conduct is criminalized under § 253.105 (2) relating to medication abortions, or penalized under the voluntary consent statute4, plaintiffs ceased providing the option of medication abortions to their clients after Act 217 became law, even though medication abortions constituted approximately 45% of the abortion procedures chosen by their patients.5 Plaintiffs are additionally concerned about their physicians’ exposure to steep forfeitures, even though they continue to perform non-medication abortions in accordance with the “voluntary consent” procedures statutorily specified. Accordingly, plaintiffs have filed this action seeking both a declaration of what the law means on these limited issues, and an injunction against prosecutions by defendants for conduct conforming to the declared meaning.

4 Defendants disagree, at least in this action, that plaintiffs’ concerns are legitimate. However, because plaintiffs’ concerns arise from their statutory interpretation, which is a purely legal issue, the parties’ differences on this point do not raise a material factual dispute. 5 Patients seeking abortions have been thus limited to one option involving the more physically intrusive surgical extraction procedure.

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Additional facts will be set forth below as pertinent to the analysis.

ANALYSIS AND DECISION ON DECLARATORY JUDGMENT

I. Section 253.105 (2) (b), Stats.

That § 253.105 (2) (b), Stats., is ambiguous in the manner identified by plaintiffs cannot be reasonably disputed.

Because “given’ is undefined in the statute, we begin with the dictionaries. “In determining the ordinary meaning of undefined words, ‘[w]e may consult a dictionary to aid in statutory construction.’” County. of Dane v. Labor & Indus. Review Comm'n, 315 Wis. 2d 293, 310-11 (2009) (citations omitted.)

Doing so here, however, merely underscores the ambiguity. Again, § 253.105 (2) (b), Stats., requires the physician to be "physically present in the room when the [abortion-inducing] drug is given to the woman." The verb "give" from which “given” is derived, has multiple definitions in the English language. See, for example, Merriam Webster’s Online Dictionary, www.merriam-webster.com/give:

3 a : to put into the possession of another for his or her use <gave me his phone number> b (1) : to administer as a sacrament (2) : to administer as a medicine

Or consult the Oxford English Dictionary (online edition), www.oed.com/view/Entry/78553 6:

…

II. To deliver, hand over (without reference to change of ownership). 6. a. To deliver or hand (something) to a person, so that he takes it; to put (food or drink) before a person. …

… c. To administer, ‘exhibit’, as a medicine.

(Boldface and italics in original) So what conduct of the physician is mandated by § 253.105 (2) (b), at penalty of prison should he or she incorrectly choose? Without a definition of “given” in the statute, does the word mean “dispensed”, i.e., merely handed over

6 Billing itself as “[t]he definitive record of the English language”.

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to the patient? Or, does it mean actually “administered” to her, i.e. orally ingested?7

The former definition is substantially less cumbersome for both patient and physician than the latter, in that it would require that the physician be present on only one visit when both abortion-inducing drugs are dispensed, that is, handed over to the patient.8 Actually administering the abortion-inducing drug requires two face-to-face appointments between physician and patient 24 hours apart, rather than one. It is not medically necessary for a patient to be administered misoprostal by a physician or in his presence, according to the undisputed medical evidence of record here. On the other hand, 10% of patients undergoing medication abortions live over 65 miles from the nearest Planned Parenthood abortion facility, and traveling that distance for a second meeting may cause complications for a woman already experiencing some side effects. Missing the second appointment with the physician (for whatever reason) would potentially imperil the patient, because administration of the first drug without timely administration of the second increases the patient’s risk of complications, including incomplete abortion and infection.

Determining whether § 253.105 (2) (b) is ambiguous begins with well-

settled rules of statutory construction. A statute is ambiguous if reasonable persons could disagree as to its meaning, and whether a statute is ambiguous is a question of law. P.A.K., 119 Wis.2d at 878–79, 350 N.W.2d at 681–82; In re D.S., 142 Wis.2d 129, 134, 416 N.W.2d 292, 294 (1987).

Drangstviet v. Auto-Owners Ins. Co., 195 Wis. 2d 592, 598 (Ct. App. 1995).

Without question, reasonable persons can and do disagree as to the

meaning of “given” in § 253.105 (2) (b). The statute is thus ambiguous. Defendants’ argument to the contrary - that the statute is unambiguous because no reasonable person could interpret “given” to mean “administered” as opposed to simply dispensed - is specious at best. Indeed, the only dictionary definition of “give” specifically in the medical context is “administered”.9

7 Or, perhaps, something else? The various definitions of the verb “give” literally consume pages in the dictionary, although only the ones referenced above appear potentially applicable to the statutes at issue here. 8 The physician will have already met once previously with the patient under § 253.105 (2) (a)

and § 253.10 (3) (c). 9 Even defendants do not truly believe their argument, because they repeatedly invoked legislative history to demonstrate unambiguity at oral argument.

Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 7; *664 Cramer, 236 Wis.2d 473, ¶ 18, 613 N.W.2d 591; Seider, 236 Wis.2d 211, ¶ 50, 612 N.W.2d 659; Martin, 162 Wis.2d at 893–94, 470 N.W.2d 900.

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Because a reasonable physician cannot determine what conduct is

criminalized under the statute, the statute is unconstitutionally vague unless the ambiguity is resolved.

A **10 criminal statute is unconstitutionally vague if it either fails to afford proper notice of the conduct it seeks to proscribe, or fails to provide an objective standard for enforcement. State v. Smith, 215 Wis.2d 84, 91, 572 N.W.2d 496, 498 (Ct.App.1997). In order to give proper notice, a criminal statute must sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area. Id. The statute must not be so obscure that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. Kay Distrib., 110 Wis.2d at 34, 327 N.W.2d at 192.

State v. Hahn, 221 Wis. 2d 670, 677 (Ct. App. 1998).

Of course, wherever possible, this court must construe a statute to eliminate constitutional infirmities. State v. Fry, 131 Wis. 2d 153 (1986) (cert denied, 479 U.S. 989, 1986) (overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252).

Where there is serious doubt of constitutionality, we must look to see whether there is a construction of the statute which is reasonably possible which will avoid the constitutional question.

Baird v. La Follette, 72 Wis. 2d 1, 5 (1976) (citations omitted). Thus, plaintiffs are entitled under Wisconsin law to a declaratory judgment establishing the meaning of “given” and therefore the conduct that § 253.105 (2) (b) proscribes as criminal. Indeed, the Uniform Declaratory Judgment Act, § 806.04 (2), Stats., exists precisely for this purpose:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

(Boldface added.) This lawsuit falls squarely within the quintessential wheelhouse of the Uniform Declaratory Judgment Act, as § 806.04 (12) makes clear:

State ex rel. Kalal v. Circuit Court for Dane Count., 271 Wis. 2d 633, 663-64 (2004)

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(12) Construction. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

After all, it is “a major responsibility of the judicial branch of government, deciding what statutes mean.” County of Dane v. Labor & Indus. Review Comm'n, 315 Wis. 2d 293, 309 (2009) citing Racine Harley–Davidson, 292 Wis.2d 549, ¶ 105, 717 N.W.2d 184 (Roggensack, J., concurring). Having now established that plaintiffs are entitled to declaratory judgment, the question becomes, what is the correct interpretation of "given" in § 253.105 (2) (b)? The legal principles controlling statutory construction for the purpose of resolving ambiguities are well-stated by our Supreme Court in State ex rel. Kalal v. Circuit Court for Dane County., 271 Wis. 2d 633, 662-67 (2004) (Sykes, J.):

¶ 44 Accordingly, we now conclude that the general framework for statutory interpretation in Wisconsin requires some clarification. It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination **124 of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

24 *663 ¶ 45 Thus, we have repeatedly held that statutory interpretation “begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” Seider, 236 Wis.2d at 232, 612 N.W.2d 659; see also Setagord, 211 Wis.2d at 406, 565 N.W.2d 506; Williams, 198 Wis.2d at 525, 544 N.W.2d 406; Martin, 162 Wis.2d at 893–94, 470 N.W.2d 900. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Bruno v. Milwaukee County, 2003 WI 28, ¶¶ 8, 20, 260 Wis.2d 633, 660 N.W.2d 656; see also Wis. Stat. § 990.01(1).

¶ 46 Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. State v. Delaney, 2003 WI 9, ¶ 13, 259 Wis.2d 77, 658 N.W.2d 416; Landis v.

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Physicians Ins. Co. of Wis., 2001 WI 86, ¶ 16, 245 Wis.2d 1, 628 N.W.2d 893; Seider, 236 Wis.2d 211, ¶ 43, 612 N.W.2d 659. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. Martin, 162 Wis.2d at 894, 470 N.W.2d 900; Bruno, 260 Wis.2d 633, ¶ 24, 660 N.W.2d 656. “If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.” Bruno, 260 Wis.2d 633, ¶ 20, 660 N.W.2d 656. Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 7; *664 Cramer, 236 Wis.2d 473, ¶ 18, 613 N.W.2d 591; Seider, 236 Wis.2d 211, ¶ 50, 612 N.W.2d 659; Martin, 162 Wis.2d at 893–94, 470 N.W.2d 900. “In construing or interpreting a statute the court is not at liberty to disregard the plain, clear words of the statute.” State v. Pratt, 36 Wis.2d 312, 317, 153 N.W.2d 18 (1967).

¶ 47 The test for ambiguity generally keeps the focus on the statutory language: a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses. Bruno, 260 Wis.2d 633, ¶ 19, 660 N.W.2d 656; Martin, 162 Wis.2d at 894, 470 N.W.2d 900. It is not enough that there is a disagreement about the statutory meaning; the test for ambiguity examines the language of the statute “to determine whether ‘well-informed persons should have become confused,’ that is, whether the statutory ... language reasonably gives rise to different meanings.” Bruno, 260 Wis.2d 633, ¶ 21, 660 N.W.2d 656 (second emphasis added). “Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity.” Id., ¶ 25.

¶ 48 At this point in the interpretive analysis the cases will often recite the following: “If a statute is ambiguous, the **125 reviewing court turns to the scope, history, context, and purpose of the statute.” Cramer, 236 Wis.2d 473, ¶ 18, 613 N.W.2d 591; Setagord, 211 Wis.2d at 406, 565 N.W.2d 506; Williams, 198 Wis.2d at 525, 544 N.W.2d 406. Sometimes the cases substitute the phrase “subject matter and object of the statute” for the phrase “purpose of the statute” in this litany. Ball v. Dist. No. 4, Area Bd. Of Vocational, Technical & Adult Educ., 117 Wis.2d 529, 538, 345 N.W.2d 389 (1984). Either way, this common formulation is somewhat misleading: scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, *665 context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history.

¶ 49 Some statutes contain explicit statements of legislative purpose or scope. A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes—that is, from its context or the structure of the statute as a coherent whole. Many words have multiple dictionary definitions; the applicable definition depends upon the context in which the word is used. Accordingly, it cannot be correct to suggest, for example, that an examination of a statute's purpose or scope or context is completely off-limits unless there is ambiguity. It is certainly not inconsistent with the plain-meaning rule to consider the intrinsic context in

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which statutory language is used; a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.8

*666 ¶ 50 What is clear, however, is that Wisconsin courts ordinarily do not consult extrinsic sources of statutory interpretation unless the language of the statute is ambiguous. By “extrinsic sources” we mean interpretive resources outside the statutory text—typically items of legislative history. Sutherland, § 45:14 at 109.

¶ 51 We have repeatedly emphasized that “traditionally, ‘resort to legislative history is not appropriate in the absence of a finding of ambiguity.’ ” Seider, 236 Wis.2d 211, ¶ 50, 612 N.W.2d 659 (quoting State v. Sample, 215 Wis.2d 487, 495–96, 573 N.W.2d 187 (1998)) (quoting in turn, Setagord, 211 Wis.2d at 406, 565 N.W.2d 506). This rule generally “prevents **126 courts from tapping legislative history to show that an unambiguous statute is ambiguous.” Id., ¶ 51. That is, the rule prevents the use of extrinsic sources of interpretation to vary or contradict the plain meaning of a statute, ascertained by application of the foregoing principles of interpretation. Thus, as a general matter, legislative history need not be and is not consulted except to resolve an ambiguity in the statutory language, although legislative history is sometimes *667 consulted to confirm or verify a plain-meaning interpretation. Seider, 236 Wis.2d 211, ¶¶ 51–52, 612 N.W.2d 659.

¶ 52 Properly stated and understood, this approach to statutory interpretation is not literalistic, nor is it “conclusory” or “result-oriented” in application, as suggested by the chief justice's concurrence. Concurrence of Chief Justice Abrahamson, ¶ 63. An interpretive method that focuses on textual, intrinsic sources of statutory meaning and cabins the use of extrinsic sources of legislative intent is grounded in more than a mistrust of legislative history or cynicism about the capacity of the legislative or judicial processes to be manipulated. Concurrence of Chief Justice Abrahamson, ¶¶ 63, 66. The principles of statutory interpretation that we have restated here are rooted in and fundamental to the rule of law. Ours is “a government of laws not men,” and “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” Antonin Scalia, A Matter of Interpretation, at 17 (Princeton University Press, 1997). “It is the law that governs, not the intent of the lawgiver.... Men may intend what they will; but it is only the laws that they enact which bind us.”9 Id.

In construing § 253.105 (2) (b) under these principles, this court concludes that the correct interpretation of the statute requires the physician to be physically present when the abortion inducing drugs are dispensed to or handed over to the patient, not when the patient actually ingests the drugs.

First, the legislative history, while scant and not altogether uniform and

clear, appears to suggest that the impetus for Act 217 was the concern of several legislators with the increasing use of “web cam” abortion procedures, by which the physician consulted with the patient only remotely by internet teleconference, and then mailed the abortion-inducing drugs to her. The interpretation adopted by

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this court eliminates the possibility of “web cam” procedures, because the physician must be “physically present” when the drugs are dispensed, i.e. handed over, to the patient.

Second, all parties to this lawsuit expressly agree that this is the proper

interpretation. Third, and closely related, in the 3 years since Act 217 was adopted, the

Attorney General has repeatedly advocated for this very construction of § 253.105 (2) (b) both in this court and previously in the United States District Court for the Western District of Wisconsin. Indeed, in the federal action, he urged Judge Crabb to enter judgment adopting the same interpretation of § 253.105 (2) (b) declared by this court here. Yet in all the years this very public battle has been fought in two separate courtrooms, the legislature has done nothing to amend the law to define “given” to require that the physician be physically present when the abortion-inducing drugs are actually administered to or ingested by the patient. Thus, it is more likely than not that the legislature agrees with the interpretation of § 253.105 (2) advanced by the Attorney General and declared here.10

Fourth, it is undisputed on this record that there is no medical necessity for

a physician to be physically present when the pills are ingested by the patient. Indeed, under the alternative “administered/ingested” interpretation, there are potential dangers to the woman who must travel to a second appointment while the abortion is in progress. Thus this court’s interpretation aligns with one of the legislature’s cardinal purposes in adopting Act 217, “[p]rotecting the life and health of the woman subject to an elective abortion…” § 253.10 (1) (b) 1, Stats.

Finally, the interpretation of “given” in § 253.105 (2) adopted here involves

far less of an encumbrance or impediment to a woman’s exercise of her constitutional right to first trimester abortion recognized in Roe v. Wade, 410 U.S.

10 This is admittedly only a shirt-tail relative of the following rule of statutory construction:

Where a law passed by the legislature has been construed by the courts, legislative acquiescence *634 in or refusal to pass a measure that would defeat the courts' construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged; for the principle of the courts' decision—legislative intent—is a historical fact and, hence, unchanging. Thus, when the legislature acquiesces or refuses to change the law, it has acknowledged that the courts' interpretation of legislative intent is correct. This being so, however, the courts are henceforth constrained not to alter their construction; having correctly determined legislative intent, they have fulfilled their function.

Zimmerman v. Wisconsin Elec. Power Co., 38 Wis. 2d 626, 633-34 (1968). Here, of course, the legislature has not been faced yet with a court’s actual declaratory judgment construing the statute although, as noted, not through lack of effort by the Attorney General to secure such a judgment. To suggest that the Attorney General continues to pursue a public legal position contrary to what the legislature intends, but without objection from any lawmaker - and on an issue as white-hot as abortion, no less - is far-fetched.

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113 (1973) than does the alternative. Where, as here, a more benevolent construction exists, this court will not adopt a statutory construction that presumes the legislature intended to substantially burden – perhaps unconstitutionally so – the free exercise of fundamental rights by Wisconsin women.

II. Section 253.10 (3) (b), Stats. The issue under the “voluntary consent” statute is whether “good faith” adherence to the statute is an implicit defense to a civil forfeitures action and civil liability, because the statute does not say. To repeat, § 253.10 (3) (b) provides that the physician inducing the abortion “"shall determine whether the woman's consent is, in fact, voluntary", that is, "given freely and without coercion by any person."11

Plaintiffs’ concern arises because the statute specifically provides a presumption in favor of a physician against liability for an uninformed or insufficiently informed patient where the physician has “made a reasonably diligent effort” to follow the statutorily-prescribed procedure. See § 253.10 (7). No similar presumption explicitly arises for a physician who makes a good faith, reasonably diligent effort to determine if ‘the woman’s consent is, in fact, voluntary” under § 253.105 (2) (b) even where the physician assiduously adheres to the statutory procedure.

In other words, given that an “informed” decision is explicitly presumed

where the physician follows the statutory procedures, but that “consent” to the procedure is not, does the statute impose strict liability on physicians who undertake their best efforts to determine that “the woman’s consent is, in fact, voluntary”, if that determination subsequently turns out to be erroneous?

In short, is mens rea, scienter or even negligence required for a violation

of the statutory “consent” provisions? While the statute is silent on this point, the parties, including all defendants, again unanimously say yes — and for good reason.

11 In its entirety, § 253.10 (3) (b) provides:

(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. Notwithstanding par. (c)3., the 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. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone.

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We begin with the proposition that “[f]orfeitures are not favored in the law and statutes imposing the same are subject to the rule of strict construction.” State v. James, 47 Wis. 2d 600, 602 (1970) (footnotes omitted).

The forfeitures imposed by § 253.10 (3), Stats., while civil, are nonetheless penal in nature. They are enacted to enforce compliance with the “voluntary consent” provisions of § 253.10, to deter conduct that violates the statute, and to punish those who do not comply. Yet, without an implied “good faith” defense, the § 253.10 (3) forfeitures would serve none of these purposes in certain cases. This is because they could be levied against those physicians who intended to and did fully conform their conduct to the requirements of the statute. These physicians would be subject to penalty for circumstances wholly beyond their control, i.e. their patient’s purely subjective mindset. Physicians could be ordered to pay $10,000 even though there is literally nothing more they could have done to comply with the statute. Indeed, without a “good faith” implied defense, physicians could ensure they do not violate the “voluntary consent” law only by abstaining from performing abortions altogether.

While it is true that mens rea or scienter are not always prerequisites for imposition of forfeitures, such as “rules of the road” violations under Chapter 346, Stats.12, the forfeitures in those proceedings are nonetheless directed at promoting behavior that fully complies with the law, and punishing those who do not comply. Under § 253.10 (3), however, a physician’s compliance with the “voluntary consent” law to the fullest extent of human capability can still be punished with a $10,000 forfeiture, absent an implied “good faith” defense.

Moreover, strict liability is not necessary, nor even particularly helpful, to

advance the legislature’s stated purposes in enacting § 253.10. Section 253.10 (1) (b) provides:

(b) It is the intent of the legislature in enacting this section to further the important and compelling state interests in all of the following: 1. Protecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child. 2. Fostering the development of standards of professional conduct in the practice of abortion. 3. Ensuring that prior to the performance or inducement of an elective abortion, the woman considering an elective abortion receive personal counseling by the physician and be given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion. 4. Ensuring that a woman who decides to have an elective abortion gives her

voluntary and informed consent to the abortion procedure.

12 See, e.g., § 346.60, Stats.

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Requiring the physician performing the abortion to adhere to the procedures prescribed in § 253.10 and exercise sound medical judgment to make a good faith determination “whether the woman’s consent is, in fact, voluntary” suffices to further these “important and compelling state interests”. Strict liability imposition of forfeitures adds nothing.

So, for example, “[p]rotecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child” is accomplished as much as possible by the sound medical judgment of the physician, combined with compliance with the statutory procedure and a good faith determination that the woman’s consent was, in fact, voluntary. Substantially penalizing the physician who so acts constitutes punishment of the innocent.

Moreover, a physician cannot do any more to foster the development of

“standards of professional conduct” by being punished for not reading the mind of the patient, if he has conformed his conduct to the dictates of the statute and exercised good faith in his or her determination that the consent is, in fact, voluntary.

The same holds true for “[e]nsuring that … the woman considering an elective abortion receive personal counseling by the physician and be given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion.” A physician can do no more towards “ensuring” this “compelling interest” than follow the statute to the letter and exercise good faith and sound medical judgment.

Finally on this point, a physician moves no closer towards “[e]nsuring that a woman… gives her voluntary and informed consent…” by suffering a $10,000 forfeiture where the physician has followed the statute and exercised good faith in his judgment and determination on voluntary consent.

In line with the proposition that forfeitures are disfavored in Wisconsin, our

Supreme Court has demonstrated historical reluctance to impose forfeitures where a statute’s meaning is unclear and the penalty may thus be unreasonably harsh. Forfeiture penalties are limited to that conduct clearly intended to be punished. See, e.g., Boynton Cab Co. v. Neubeck, 237 Wis. 249 (1941).

In view of these consequences which would thus result if the

provision as to misconduct, under which an employee may become subjected to the forfeiture, must be deemed applicable to all types of “misconduct” that can be considered to be within the broad scope of that term (as defined in the above quotation from 40 C.J. p. 1220), and in view of the ambiguous or doubtful import in its meaning as used in the statute, it is necessary and proper to resort to the rule that statutes providing for forfeitures are to be strictly construed and terms and provisions therein, which are ambiguous or

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of doubtful meaning, will be given the construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision. “Where the purpose is uncertain, the language should be read strictly to soften its severity; where otherwise, it would express a meaning which would be unreasonably harsh.” State v. Helmann, 163 Wis. 639, 643, 158 N.W. 286, 288; Hammel v. Cairnes, 129 Wis. 125, 107 N.W. 1089, 1090; Miller v. Chicago & N. W. Ry. Co., 133 Wis. 183, 113 N.W. 384; Weirich v. State, 140 Wis. 98, 121 N.W. 652, 22 L.R.A.,N.S., 1221, 17 Ann.Cas. 802; Krom v. Antigo Gas Co., 154 Wis. 528, 140 N.W. 41, 143 N.W. 163; Oconto County v. Union Mfg. Co., 190 Wis. 44, 208 N.W. 989; Calvetti v. Industrial Comm., 201 Wis. 297, 230 N.W. 130.

In the case at bar, it is not at all clear from the specific language of § 253.10 (3) (b) or the statutory purpose set forth in § 253.10 (1), 6. (b) that the legislature intended to punish good faith, reasonable adherence to the statute. Thus the § 253.10 (3) should be read “to soften its severity” by barring forfeitures where the physician has followed the statutory procedures and made a good faith, i.e. objectively and subjectively reasonable, determination that the woman’s consent is, in fact, voluntary.” “[O]therwise, it would express a meaning which would be unreasonably harsh.” Boynton Cab, 237 Wis. 2d at 259.

Strict liability imposition of forfeitures, on the other hand, would raise

constitutional concerns because it would fail to give the physician a reasonable opportunity to act in a manner to avoid the penalty, contrary to Wisconsin law:

In order to withstand a vagueness challenge, it is not necessary for a law to attain the precision of mathematics or science, but it must be sufficiently definite so that potential offenders who wish to abide by the law are able to discern when the region of proscribed conduct is neared and those who are charged either with enforcing or applying it are not relegated to creating their own standards of culpability instead of applying the standards prescribed in the law.

City of Milwaukee v. Wilson, 96 Wis. 2d 11, 16 (1980). Strict liability imposition of forfeitures would thus threaten due process by “laying a trap for those who act in good faith.” Cf. Dolautti v. Franklin, 439 U.S. 379, 395 (1979) (holding that the lack of a scienter element in a provision requiring the physician to determine the viability of a fetus exacerbated vagueness concerns). See also Gonzales v. Carhart, 550 U.S. 124, 149 (2007):

This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.

Uncertainty to the point that "it makes doctors afraid to perform constitutionally permissible abortions is quite likely to infringe constitutional

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rights." Planned Parenthood of Wisconsin v. Doyle, 162 F.3rd 463, 469 (7th Cir. 1998), citing Colautti, 439 U.S. at 390-401.

Defendants resist a declaratory judgment on the "voluntary consent"

statute, not because they believe the statute imposes strict liability for forfeitures, but because they believe that the statute is clear on its face that it does not. They argue:

With this language, the Legislature chose to require a physician to make an inquiry and a determination as to the woman's consent. The law does not require the physician to know everything in the mind of the patient, but just to have a private conversation and consider whether there is reason to suspect that a patient is being coerced or otherwise in danger. That is all that is required under the law, and nothing more.

(Response of Defendants to Plaintiffs' Motion for Summary Judgment, p. 26). But that is not all the statute says.

Rather, it additionally requires "[t]he physician who is to perform or induce the abortion shall determine whether the woman's consent is, in fact, voluntary." (Boldface added.) This language is incorrectly ignored as superfluous by the defense argument.

In interpreting a statute, courts give effect to every word so that no portion of the statute is rendered superfluous. Janssen v. State Farm Mut. Auto. Ins. Co., 2002 WI App 72, ¶ 13, 251 Wis.2d 660, 643 N.W.2d 857.

Marotz v. Hallman, 302 Wis. 2d 428, 442 (2007).

With the legislature’s addition of this language, plaintiffs are fully justified in their concern about whether physicians are exposed to substantial forfeitures, where the patient’s consent turns out not to be voluntary, notwithstanding the physician’s assiduous compliance with the statutory procedure (private meeting, etc.) and good-faith determination that the patient’s consent was voluntary. This is precisely the type of uncertainty that declaratory judgments are meant to resolve.

JUSTICIABILITY

Defendants’ principal defense in this action – indeed, their only defense, given that they have explicitly agreed with plaintiffs’ interpretations of §§ 253.105 (2) (b) and 253.10 – posits that plaintiff’s complaint fails to present a justiciable controversy. Defendants are wrong.

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Plaintiffs Planned Parenthood and Dr. Broekhuizen sue for a declaratory judgment under the Uniform Declaratory Judgment Act, § 806.04, Stats., which, as pertinent to the issue of justiciability, provides:

(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03(1).

(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. … … (5) Enumeration not exclusive. The enumeration in subs. (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in sub. (1) in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty … (12) Construction. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

(13) Words construed. The word “person” wherever used in this section, shall be construed to mean any person … or other corporation of any character whatsoever.

… (Italics and underlining added.) On its face, the broad mandate of § 806.04 supports justiciability of plaintiff’s Complaint. Liberally construed, as § 806.04 (12) expressly requires to further a declaratory judgment’s remedial purpose, the rule permits any person whose “rights … are affected by a statute” to sue for declaratory judgment. The record here is undisputed that Act 217’s requirements “affect” plaintiffs’ rights because these statutes specifically regulate plaintiffs’ professional conduct in providing abortion services to women. Indeed, because of the unclear meaning of both §§ 253.105 (2) (b) and 253.10, Stats., and the hefty penalties visited upon those who divine the meaning incorrectly, plaintiffs have ceased performing medication abortions altogether. This is no “trifling” injury, since Planned Parenthood previously was, by far, the chief provider of these services to Wisconsin women. However, even if it were trifling, § 806.04, on its face,

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requires nothing more. See, e.g., McConkey v. Van Hollen, 326 Wis. 2d 1, 11 (2010).13

That the justiciability defense in this case is non-existent is made clear by the expansive Supreme Court case law concerning justiciability in declaratory judgment actions under § 806.04. Olson v. Town of Cottage Grove, 309 Wis. 2d 365 (2008) is particularly supportive of plaintiffs on this point. Olson involved a declaratory judgment action asserting the unconstitutionality of a municipal ordinance which Olson claimed would have adversely affected him were he to submit a petition for rezoning. The trial court dismissed on ripeness grounds, holding that Olson had demonstrated no immediate impact from the ordinance because he had not submitted a new rezoning petition, only potential future impact which was too contingent to trigger the availability of declaratory relief. 309 Wis. 2d at 376. Our Supreme Court disagreed, affirming the Court of Appeals’ reversal of the trial court. Justice Prosser (writing for the majority) stated the following regarding the Uniform Declaratory Judgment Act, § 806.04:

A court must be presented with a justiciable controversy before it may exercise its jurisdiction over a claim for declaratory judgment. This is so because the purpose of the Act is to allow courts to anticipate and resolve identifiable, certain disputes between adverse parties. Putnam, 255 Wis.2d 447, ¶ 43, 649 N.W.2d 626 (citing Wis. Stat. § 806.04(12); Lister v. Bd. of Regents of Univ. of Wis. Sys., 72 Wis.2d 282, 307, 240 N.W.2d 610 (1976)). “The underlying philosophy of the Uniform Declaratory Judgments Act is to enable controversies of a justiciable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been threatened or committed.” Lister, 72 Wis.2d at 307, 240 N.W.2d 610. Therefore, before one may seek declaratory relief pursuant to the Act, he must demonstrate that his cause of action is properly before the court-namely, that it is justiciable. Loy, 107 Wis.2d at 409-10, 320 N.W.2d 175. ¶ 29 The leading Wisconsin case on declaratory judgments is Loy, which emphasized that a declaratory judgment is fitting when a controversy is justiciable. Id. at 410, 320 N.W.2d 175. A controversy is justiciable when the following four factors are present: (1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.

13 Defendants contention that plaintiffs’ “voluntary consent’ claim is non-justiciable because plaintiffs continue to provide non-medication abortions post-Act 217, and therefore have suffered no injury caused by the Act, is baseless under Wisconsin law. Section 806.04’s scope is broad and its purpose remedial. It does not require that a plaintiff cease all activities potentially sanctionable under an unclear statute in order to seek judicial construction of that statute. The reasonable apprehension of sanctions here is all that is needed. Otherwise, contrary to Olson and its progenitors, we would eliminate a substantial number of potential cases where declaratory judgment “would serve a useful purpose”. We would also suppress, by operation of law, conduct that may very well be entirely lawful.

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*380 (2) The controversy must be between persons whose interests are adverse. (3) The party seeking declaratory relief must have a legal interest in the controversy-that is to say, a legally protectible interest. (4) The issue involved in the controversy must be ripe for judicial determination. Id. (citing Declaratory Judgments, supra, at 26-57). “If all four factors are satisfied, the controversy is ‘justiciable,’ and it is proper for a court to entertain an action for declaratory judgment.” Miller **219 Brands-Milwaukee, Inc. v. Case, 162 Wis.2d 684, 694, 470 N.W.2d 290 (1991).

… 309 Wis. 2d at 379-380. Justice Prosser continued:

The Act is to be liberally construed and administered to achieve a remedial purpose. Wis. Stat. § 806.04(12). The Act’s stated purpose is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.” Id. We have stated that “[t]he preferred view appears to be that declaratory relief is appropriate wherever it will serve a useful purpose.” Lister, 72 Wis.2d at 307, 240 N.W.2d 610. Here, Olson’s suit will serve the useful purpose of settling the uncertainty that Town landowners face with regard to whether they must first comply with the ordinance to obtain final plat approval and, subsequently, rezoning approval. Olson’s declaratory suit was an effort to avoid subjecting himself to financial loss due to compliance with an ordinance he believed the Town had no legal or constitutional authority to impose. ¶ 43 We have previously commented on the legal question of ripeness in the declaratory judgment context. By definition, the ripeness required in declaratory judgment actions is different from the ripeness required in other actions. Putnam, 255 Wis.2d 447, ¶ 44, 649 N.W.2d 626 (citing *387 Milwaukee Dist. Council 48, 244 Wis.2d 333, ¶ 41, 627 N.W.2d 866). In State ex rel. Lynch v. Conta, this court analyzed a declaratory judgment involving a forfeiture statute. Lynch, 71 Wis.2d at 674, 239 N.W.2d 313. It declared that potential defendants “may seek a construction of a statute or a test of its constitutional validity without subjecting themselves to forfeitures or prosecution.” Id. (citations omitted).8 Thus, a plaintiff seeking declaratory judgment need not actually suffer an injury before availing himself of the Act. Milwaukee Dist. Council 48, 244 Wis.2d 333, ¶ 41, 627 N.W.2d 866. What is required is that the facts be sufficiently developed to allow a conclusive adjudication. Id.; Lynch, 71 Wis.2d at 674, 239 N.W.2d 313 (citing Declaratory Judgments, supra, at 56). As we stated in Miller Brands-Milwaukee, “the facts [must] be sufficiently developed to avoid courts entangling themselves in abstract disagreements.” 162 Wis.2d at 694, 470 N.W.2d 290 (citing Loy, 107 Wis.2d at 412, 414, 320 N.W.2d 175). The facts on which the court is asked to make a judgment should not be contingent or uncertain, but not all adjudicatory facts must be resolved as a prerequisite to a declaratory

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judgment. Miller Brands-Milwaukee, 162 Wis.2d at 694-95, 470 N.W.2d 290 (citing Loy, 107 Wis.2d at 412, 320 N.W.2d 175).

309 Wis. 2d at 386-387. It is significant that the Olson Court of Appeals and Supreme Court had no quarrel with justiciability, although Mr. Olson could demonstrate no actual injury, or even any threatened injury beyond the hypothetical. And Lister, quoted above, specifically eschews the requirement for even “threatened injury” in declaratory judgment actions under § 806.04. Lister, 72 Wis.2d at 307. Olson holds that declaratory relief is appropriate wherever it will serve a useful purpose, again citing Lister. 309 Wis.2d at 386. As the Olson court emphasized, the stated purpose for § 806.04 is to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations. Id. Insecurity and uncertainty as to what conduct is sanctioned by prison or hefty forfeitures under Act 217 comprise precisely the situation facing Planned Parenthood and Dr. Broekhuizen. Although Olson cautions that the facts must be sufficiently developed to avoid courts entangling themselves in abstract disagreements, 309 Wis. 2d at 387, the only facts involved in plaintiffs’ declaratory judgment action here are undisputed and concrete. They are (1) that plaintiffs provided abortion services, including medication abortions, before Act 217 was enacted, (2) Act 217 was enacted with uncertain meaning in those provisions addressed in this case, placing plaintiffs in the position of not knowing what conduct was criminalized or otherwise subject to hefty monetary sanctions under the new law, and (3) accordingly, medication abortions were stopped by plaintiffs altogether. This action thus involves a purely legal challenge; the factual development so concerning to Olson is largely a non-factor. Moreover, there is nothing abstract about the ambiguities inherent in the statutory language at issue here. The bottom line is that if Mr. Olson’s case was justiciable, so too is plaintiffs’ here. The defense argument to the contrary is puzzling at best. It rests on two illusory premises. First, it posits that there are no ambiguities in §§ 253.105 (2) (b) and 253.10, Stats., because no reasonable person could interpret the statutes other than in the manner urged by plaintiffs here. As set forth at length in the “Declaratory Judgment” section above, this assertion is demonstrably false.14 Second, defendants argue that, because they have no current subjective intention of prosecuting any abortion provider for conduct that conforms to the

14 Even if there were no ambiguity, construction of the statutes by this court is not foreclosed. See, e.g., Voss v. City of Middleton, 162 Wis. 2d 737 (1991). Under Olson, supra, statutory construction could still proceed where, as here, it would serve a useful purpose.

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interpretations of the statutes plaintiffs seek to have declared here, the parties are not adverse, and therefore justiciability is absent. This contention is unpersuasive for at least these reasons.

1) Plaintiffs seek a declaration on the meaning of ambiguous statutes, which is an objective issue -- a question of law -- not a matter of the subjective intent of those who enforce the law. This is precisely the purpose of § 806.04.

2) The subjective intent of the current prosecutors is not binding on them

or their successors. Accordingly, absent a definitive declaration of what the law requires, plaintiffs would be at the mercy of defendants' whims, and those of officials who succeed them.15 The defense position thus defies a fundamental precept embedded in the DNA of our American system of justice – that ours is “a government of laws, and not of men.”16 Court access to resolve legitimate issues of statutory construction does not turn upon the good faith of government officials.17

3) Even the case law defendants cite in support of their position supports

justiciability here. This is not surprising given the very broad scope of declaratory judgment actions endorsed by both § 806.04 and the case law construing it (set forth above). Thus, for example, defendants rely on Miller Brands-Milwaukee, Inc. v. Case, 162 Wis. 2d 684 (1991) and Hancock v. Regents of the University of Wisconsin, 61 Wis. 2d 484 (1973).

Miller Brands is a ripeness case that, unlike the case at bar, involved a

requested advisory opinion on alternate versions of hypothetical facts. Nonetheless, as pertinent here, it specifically rejected the notion that the contingency of prosecution alone defeats justiciability in an otherwise factually developed record:

In Tooley v. O'Connell, 77 Wis.2d 422, 253 N.W.2d 335 (1977), the plaintiff brought an action requesting the court to declare a statute which authorized collection and distribution of property taxes for the financing of public schools unconstitutional. Id. at 428, 253 N.W.2d 335. This court held that the issue was ripe for determination **295 because the tax had already been levied and collected. Id. at 440, 253 N.W.2d 335. The constitutional

15 Case in point: these are the same defendants who stipulated to plaintiffs’ entitlement to a declaratory judgment in the federal action, but have made an inexplicable about-face and fought plaintiffs’ identical action in this court tooth-and-nail. 16 John Adams in his 7th “Novanglus” letter, published in the Boston Gazette in 1774. See also State ex rel. Kalal v. Circuit Court for Dane County., 271 Wis. 2d 633, 667 (2004) (Sykes, J. quoting United States Supreme Court Justice Antonin Scalia). 17 This court does not question defendants’ good faith. Still, what possible interest does the State

have in blocking its citizens from learning what a statute requires so they may conform their conduct accordingly?

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violations, if any, had already occurred, and no future events were necessary to enlarge upon the circumstances of the controversy. Id. Tooley does not stand for the proposition that a prosecution must be pending in order for an action to be ripe for a declaratory judgment. Otherwise the purpose of the declaratory action would be defeated. See Lister v. Board of Regents, 72 Wis.2d 282, 307, 240 N.W.2d 610 (1976). As this court stated in State ex rel. Lynch v. Conta, 71 Wis.2d 662, 674, 239 N.W.2d 313 (1976), “[p]otential defendants may seek a construction of a statute or a test of its constitutional validity without subjecting themselves to forfeitures or prosecution.” Yet under the ripeness element of justiciability, “if another act can be taken to remove contingencies and doubt, it should be taken to make the action proper. Factual circumstances determine whether this factor is satisfied.” Id. *696 In Lynch, the facts were stipulated. Id. at 675, 239 N.W.2d 313. It was certain that the respondents and four senators had held private meetings, and that no notice was given pursuant to the open meetings law. Id. at 665, 239 N.W.2d 313. The department of justice was aware of the meetings but did not prosecute. Id. at 667, 239 N.W.2d 313. The court in Lynch stated that “[a]cts have been taken, and the only contingency is prosecution.... The ‘ripeness' criterion is fulfilled.” Id. Unlike the facts in Lynch, the “facts” provided by Miller Brands may or may not have occurred. While prosecution is a contingency, so are the facts.

162 Wis. 2d at 695-96 (1991) (boldface added). The case at bar involves an established set of facts with a contingent prosecution, the latter based solely upon the stated (but non-binding) intentions of the prosecutors. Thus, Lynch controls, not Miller Brands.

Further underscoring the point that justiciability in declaratory actions does not depend on the threat of prosecution is Lister v. Bd. of Regents of Univ. of Wis. Sys., 72 Wis.2d 282, 307, (1976) (quoted with approval by Justice Prosser in Olson, supra, at 379).

“[t]he underlying philosophy of the Uniform Declaratory Judgments Act is to enable controversies of a justiciable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been threatened or committed.”

(Boldface added.) The second case defendants emphasize, Hancock v. Regents of the University of Wisconsin, is likewise unavailing. Hancock applies Pension Management, Inc. v. DuRose, 58 Wis. 2d 122, 127-128 (1973) to its own peculiar set of facts. 61 Wis. 2d at 484. Significantly, DuRose, in turn, endorses Borden Co. v. McDowell, 8 Wis. 2d 246 (1959), which rebuts the defense contention here:

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The case of Borden Co. v. McDowell19 is particularly in point. In that case the court considered the issue of justiciability in suits for declaratory judgment brought by wholesale dairy products distributors against the director of the department of agriculture. The suits sought to have secs. 100.201 and 100.202, Stats., declared contrary to the Wisconsin and United States Constitutions. Responding to the contention that the action was not a proper one for declaratory judgment because respondents had not yet been prosecuted for violation of the statute, the supreme court held: ‘Appellant's statutory duty of enforcement presents the threat to respondents' business even though appellant has not yet moved against them. We consider that the *130 allegations of the complaint warrant relief by declaratory judgment.’20 In reaching its conclusion, the court quoted an earlier decision, Petition of State ex rel. Attorney General, wherein the court stated: ‘. . . The whole philosophy underlying the Uniform Declaratory Judgments Act is that it enables controversies of a justiciable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been committed or threatened.'21

Pension Mgmt., Inc. v. DuRose, 58 Wis. 2d 122, 129-30 (1973) (footnotes omitted; boldface added).

Defendants argue that because they do not intend to enforce Act 217 in a manner contrary to the declaration sought by plaintiffs here, two of the four prongs for justiciability18 are not satisfied. There are no “adverse interests” between the parties, so the argument goes, nor do defendants have an “interest in contesting” plaintiff’s hoped-for declaration, based upon their stated intention not to do so. However, Borden Co. supra, rejects this position, holding that statutory duties, rather than stated intentions, define defendants’ “interest(s)” under justiciability analysis. The test is objective, not subjective. Applying the test to the statutes at issue here, plaintiffs’ conduct is regulated and defendants are the enforcers. Adversity for purposes of justiciability cannot be reasonably questioned. The bottom line is simply this. Where, as here, a statute is ambiguous in identifying what conduct is potentially sanctionable by criminal penalties or steep forfeitures, a justiciable claim for declaratory judgment under § 806.04 arises for those who are subject to the statute and those whose duty is to enforce it.

18 The oft-repeated test for justiciability is this:

(1)There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; ‘(2) The controversy must be between persons whose interests are adverse; ‘(3) The party seeking declaratory relief must have a legal interest in the controversy; that is to say, a legally protectible interest; and ‘(4) The issue involved in the controversy must be ripe for judicial determination. Declaratory Judgments, Borchard, pp. 26-57.

Pension Mgmt., Inc. v. DuRose, 58 Wis. 2d 122, 127-28 (1973).

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ANALYSIS AND DECISION ON PERMANENT INJUNCTION

The standards for granting a permanent injunction differ markedly from those governing declaratory judgments. As contrasted with a declaratory judgment, which “is appropriate wherever it serves a useful purpose,” Olson v. town of Cottage Grove, 309 Wis. 2d 365, 386 (2008), an injunction is appropriately issued only in limited circumstances under criteria that are far more restrictive. Accordingly, what may suffice to warrant a declaratory judgment often falls short of supporting an injunction. Such is the case here.

Permanent injunctions are not to be issued lightly. The cause must be substantial. Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis.2d 513, 520, 259 N.W.2d 310 (1977). Because an injunction is enforceable by the contempt power, it is “an extremely powerful instrument.” Dobbs, Remedies, p. 105 (1973). 91011 The injunction is a preventive order looking to the future conduct of the parties. To obtain an injunction, a plaintiff must show a sufficient probability that future conduct of the defendant will violate a right of and will injure the plaintiff. The Kimberly & Clark Co. v. Hewitt, 75 Wis. 371, 375, 44 N.W. 303 (1890). To invoke the remedy of injunction the plaintiff must moreover establish that the injury is irreparable, I. e. not adequately compensable in damages. Ferguson v. Kenosha, 5 Wis.2d 556, 561, 93 N.W.2d 460 (1958). Finally, injunctive relief is addressed to the sound discretion of the trial court; competing interests must be reconciled and the plaintiff must satisfy the trial court that on balance equity favors issuing the injunction.14

Pure Milk Products Co-op. v. Nat'l Farmers Org., 90 Wis. 2d 781, 799-800 (1979) (underling added; footnotes omitted). Here, a permanent injunction is not warranted because plaintiffs have not shown a “sufficient probability19 that future conduct of [any] defendant will violate a right of and will injure the plaintiff[s]”. All persons and entities with any potential interest in prosecuting violations of § 253.105 or § 253.10, Stats., – the State of Wisconsin Attorney General, all 71 Wisconsin district attorneys, and all members of the State of Wisconsin Medical Examining Board – are parties to this action. They are thus bound by this court’s declarations on these statutes set forth above. Worded differently, for these parties, a declaratory judgment is the functional equivalent of an injunction. Cf. Committee on Judiciary of U.S. House of Representatives v. Miers, 542 F. 3d 909, 911 (D.C. Cir. 2008).

Moreover, all of the defendants (through counsel) have expressly and repeatedly stated on the record as well as in writing, both in this court and before the United States District Court for the Western District of Wisconsin (Judge

19 Indeed, any probability.

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Crabb), that they do not intend to prosecute anyone under these statutes for conduct that conforms to the dictates of this declaratory judgment. It is thus highly unlikely that any such criminal prosecution would commence against plaintiffs. A permanent injunction is simply unwarranted on this record and is accordingly DENIED. Likewise, the temporary injunction in this case is hereby VACATED.

CONCLUSION AND ORDER For the reasons stated, IT IS HEREBY ORDERED, DECLARED, AND ADJUDGED: (1) Section 253.105 (2), Stats., requires a physician who prescribes an abortion-inducing drug to a patient to be physically present when such drug is dispensed, i.e. handed over to, the patient, not when such drug is administered to the patient, i.e. introduced into the patient's body through ingestion or other means. Furthermore, a physician who is physically present when the prescribed abortion-inducing drug is dispensed to the woman is not subject to the criminal sanctions and penalties in § 253.105 (3), Stats., even though he or she is not physically present when the abortion-inducing drug is administered to, or ingested by, the woman. (2) Section 253.10 (3) (b) and § 253.10 (5) do not impose a strict-liability standard for a physician's determination that a woman's consent is, in fact, voluntary. Rather, a physician fully complies with these statutes and is not subject to forfeitures or other liability where the physician follows the procedures set forth in § 253.10 (3) (b), and makes a good-faith, i.e. objectively and subjectively reasonable, determination that a woman's consent is, in fact, voluntary. (3) Plaintiffs’ claim for a permanent injunction is dismissed and the temporary injunction entered in this action on April 16, 2013 is vacated. THIS DECISION AND ORDER IS FINAL FOR PURPOSES OF APPEAL.

Dated this 17th day of July, 2014.

BY THE COURT: __________________________________ Richard G. Niess Circuit Judge

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cc: Counsel of record