Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage

As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.

Roe‘s overruling raises the question of whether Wis. Stat. §940.04 prohibiting abortion is now enforceable.  Section 940.04(1) provides that “[a]ny person. other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.”  This does not apply to abortions performed by a physician if it is necessary to save the life of the mother. Wis. Stat. §940.04(5).

Attorney General Josh Kaul said that he will not enforce the lawGovernor Evers said that he will grant clemency to doctors convicted under the law. Of course, local district attorneys still have the discretion to prosecute violators. The Milwaukee and Dane County District Attorneys have said that they won’t. Other district attorneys have said that they will. Click here regarding La Crosse County and here regarding Sheboygan County. So expect to see abortion prosecutions in some counties but not others.

For now, the declaratory judgment action that Kaul filed on June 28th in Dane County Circuit Court may provide doctors and the defense with a reprieve.  It asserts that §940.04 is unenforceable because its provisions are incompatible with several statutes enacted after it, which provided parameters for when an abortion may be performed.  The later-enacted laws impliedly repealed the earlier-enacted laws.

The lawsuit also asserts §940.04 is unenforceable because of its disuse and society’s reliance on Roe. That’s an invocation of desuetude, a legal doctrine by which a law becomes obsolete due to disuse. In Lawrence v. Texas, 539 U.S. 558 (2003) SCOTUS used this doctrine to strike down sodomy laws as applied to people who are gay or lesbian.

The La Crosse County DA (see link above), notes that it is difficult to prosecute when you don’t know which law applies. Nobody can be certain about the applicable law until SCOW decides the question or the Wisconsin legislature repeals the various abortion laws on the books and adopts a new one.

Dobbs has other implications for SPD clients. The majority noted that the 14th Amendment has been held to guarantee some rights that are not mentioned in the Constitution. Abortion isn’t one of them because it is not “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Majority, at 5. So what other unenumerated rights might be at stake? Justice Thomas says the right of married people to obtain contraceptives, the right to engage in private, consensual sex acts, and the right to same-sex marriage. These are not “substantive due process” rights. They should all be reconsidered under the 14th Amendment’s privileges and immunities clause. Thomas concurrence at 3.

This debate should sound familiar to lawyers following SCOW’s recent involuntary medication decisions. SCOTUS has held that individuals have a “substantive due process right” to avoid unwanted antipsychotic medications. Washington v. Harper, 494 U.S. 210 (1990). But Justice R.G. Bradley, like Justice Clarence Thomas’s concurrence in Dobbs, argues that this is incorrect. The 14th Amendment “does not protect any substantive rights.”  Winnebago County v. C.S., 2020 WI 33, ¶47, 391 Wis. 2d 35, 940 N.W.2d 875. And Justices Hagedorn and Roggensack seem to agree with her on that point. They did not join her opinion because they felt bound by SCOTUS precedent on the subject.  Hagedorn’s dissent, ¶76. But suddenly SCOTUS precedent feels pretty shakey.

So, if you head to SCOW claiming that your client has a “substantive due process” right to something, you might want to argue that the right is also rooted in the 14th Amendment’s privileges and immunities clause and/or the Wisconsin Constitution.  Otherwise, if you need R.G. Bradley, Hagedorn, and/or Roggensack, you are unlikely to win them.

This post is intentionally brief. Feel free to highlight other implications of Dobbs for defenders and/or propose defense strategies in the comment section below.