*1 Plaintiff-Appellant, Wisconsin, State
v. Dеfendant-Respondent. Glenndale Black, Supreme Court argument September Oral No. 92-2325-CR. 14, 1994. December 1994. Decided 132.) (Alsoreported in 526 N.W.2d *2 For the plaintiff-appellant the cause was argued Balistreri, Thomas J. assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. (in
For the there defendant-respondent was a brief John the court of appeals) Miller Carroll and John Miller Carroll Law Office, Milwaukee and oral argu- ment by John Miller Carroll. (in
Amicus curiae brief was filed the court of Chernov, Croen, Charles H. Barr Stern appeals) by Burbach, S.C., & Milwaukee for the American Civil Liberties Union of Wisconsin Foundation.
WILLIAM BABLITCH, A. J. Glenndale Black *3 (Black) was charged 940.04(2)(a), under sec. Stats., for the life of destroying his unborn quick by child violently assaulting his wife five days prior to her anticipated delivery states, date. The statute in relevant part, any other than the person mother who "intentionally the life of an destroys unborn child" quick may be not imprisoned more than 15 The years. alleged assault consisted of grabbing hair, her pulling her sofa, backward onto the punching and her in the twice, abdomen the second time much harder than the first, and her a causing deal of great pain. Despite his wife's pleas, Black allegedly refused to call for or help allow his wife to seek for 15 minutes until help she screamed from abdominal When she pain. was finally transported to the hospital, a full term was baby deliv- ered dead via cesarian The surgery. attending physicians indicated that thе baby had bled to death after the placenta was detached from his mother's uter- ine wall. further They indicated that this was injury consistent with the of blunt force application trauma, The the mother's abdomen. issue
such as a punch, the above charged Black under whether statute. of the statute could conclude that words
We feti- proscribes The statute hardly plainly be clearer.1 the circuit cide, action of Black. Because alleged of the circuit otherwise, we reverse order court held with this consistent proceedings court and remand for opinion. the alleged recitation of begin complete
We with a serves complaint. complaint facts found in the At material in the record. аs the source of factual and assault, Tracy of the Glenndale alleged time Tracy months. was preg- Black had been married 13 days child due to deliver five nant Black's and with later, apparently Black was a fact known Black. her initially told Tracy's pregnancy with unhappy Additionally, she would have to abortion. get arguments unborn child was the several subject Black, and on one occasion Black Tracy between [my "if I don't Tracy stating, get threatened allegedly son] won't him either." you have Tracy
On
Black and
February
argued
Black
argument,
their home.
the course
During
her back-
Tracy
hair,
allegedly grabbed
pulled
ignores plain
statutory
rules of
construction:
The dissent
*4
legislative history
neither the
nor the title of the statutе can be
Martin,
ambiguity
used
create
in
v.
162
to
the statute. State
n.5,
(1991);
Valley
Wis. 2d
N.W.2d
Wisconsin
Co.,
Imp.
history
(respectively).
legislative
ward onto the and in her the abdomen causing pain. punched Tracy her Black then a second According Tracy, time in the abdomen. the second punch was much harder than the her first and caused a great pain. deal of
Immediately Tracy thereafter, realized she pleaded needed medical attention and with Black to help help. Unpersuaded, call for or to allow her seek Tracy Black detained for 15 minutes until she pain. point, screamed from abdominal At that Black arranged help Tracy subsequently for to be called. was transported Hospital. to St. Francis hospital, boy
theAt a full-term was delivered dead surgery. baby's via cesarian The bruised, head was placenta Tracy's was detached from uterine wall. delivery opined The doctors that these were conditions consistent with blunt force trauma to the mother's They abdomen. believed the cause of death was exsan- guination: baby bled to death. subsequently charged was
Black arrested and in question, an information with statute 940.04(2)(a), first-degree Stats., as well as reckless injury imprisonment. pretriаl and false filed a Black requesting motion court dismiss the count of the 940.04(2)(a), alleging information of violation grounds on that it is unconstitutional. The circuit court dismissed the count on basis the statute proscribe did not the conduct that Black was accused committing. court, however, did not rule on the constitutionality appealed the statute. The State appeals, the court of in turn, certified the issue to this court. begin by underscoring
We what this case not. This is not an abortion case the sense JRoev. Wade. right is, That this is not case about a woman's *5 pregnancy. not a case about This is her terminate physician's procedure right perform medical a case about when Further, this is not abortion. "quickens" "viable." or becоmes child unborn in This is a case which feticide. is a case about This quick allegedly of an unborn caused the death a man days, by violently assault- in five child, be born due duty ing in this case Our child's mother. unborn simply assaultive behavior whether this to determine 940.04(2)(a), proscribed We conclude Stats. it that is. 940.04(2)(a), part: Stats., reads in relevant
Section mother, who Any person, other than the may imprisoned not following of the be does either years: than 15 more
(a) destroys the life of an Intentionally quick child;.... unborn unambiguous. plain are words of the statute
The They anyone hardly provide They clearer. could be destroys intentionally than the mother who other imprisoned. quick It is life of an unborn child intentionally destroyed alleged life of that Black quick he аssaulted his wife unborn child when his punching forcefully no There is her the abdomen. "quick- dispute Black's unborn child had baby days. of the ened"—the was due five words proscribe plainly his statute actions. 940.04(2)(a), disagrees can
Black that sec. against He the statute be enforced him. contends that apply apply not intended to to feticide but was He in the context of consensual medical abortions. cites statute, "abortion," as evidence. He also title 940.04(2)(a) argues that against him because it was cannot be enforced
impliedly repealed
when
*6
to Roe v.
the
legislature enacted sec.
response
940.15
(1973).
Wade,
We his disagree with contentions. There can be no that the question has to a legislature power pass statute, feticide and such statute could include the 940.04(2)(a), Even so con- language Stats. Black 940.04(2)(a) ceded oral at Section argument. just such a feticide statute. The statutory language clearly and proscribes intentional destruction of a simply child. In of quick the face such and plain unambiguous we must title of language disregard the the statute. Comm., Wisconsin Co. v. Valley Imp. Public Serv. (1960). 606, Wis. 2d N.W.2d 798 Considera- tion of a title be used to resolve statutory only doubt to the meaning Id. as of the statute.
Further, when the legislature
enacted sec.
940.04(2)(a).
it did not
Instead,
both
repeal
940.04(2)(a)
secs.
and 940.15
Noth
remained
law.
us
ing persuades
intended
to
legislature
940.04(2)(a)
repeal sec.
when it enacted sec.
impliedly
940.15.
later
Implied repeal
statutes
enactments
cоnstruction. State v. Zawis
in statutory
not favored
towski,
(1980).
250, 264,
95 Wis. 2d
Rather, when provisions similar, argua- two are as 940.04(2)(a) are bly 940.15, Stats., secs. we must every make to effect both attempt give to by construing them so be with together as to consistent one another:
'A
will,
later and an older statute
if it is possible and
so,
always
reasonable to do
together,
construed
give
so
as
effect not
to the distinct
or
parts
provisions
latter,
of the
not
inconsistent with
law,
give
new
but
effect to
older
law as
whole, subject only
restrictions or modifications
meaning,
to have been the
its
where such seems
Karns,
v.
2d
Jicha
39 Wis.
legislative purpose.'
McLoughlin v.
(1968),
quoting
680, 159
N.W.2d
Malnar, 237 Wis.
492, 496, 497,
In construe secs. order a distinct statute having view each sistently, we (consistent with restrictions 940.15 places role. Section Wade) medical proce- on consensual abortions: Roe v. woman, which dures, with consent performed expulsion termination of a pregnancy result in the *7 woman's uterus. Section from the fetus an stat- hand, on the other is not abortion 940.04(2)(a), type procedure. of an abortive It makes no mention ute. of criminal act it the intentional Rather, proscribes an quick intentional destruction of unborn feticide: the the consent of the mother. without child presumably construction, concerns raised our above light In of Union American Civil Liberties by Black and (ACLU) Stats., could be used 940.04(2)(a), sec. that (in the context of physician a or her woman against abortion) unfounded. Section an are performing 940.04(2)(a) for consensual a charge cannot used to its terms it cannot own procedure. By abortive type (abortion a See also sec. 940.13 stat- to mother. apply who any be enforced woman against utes cannot abortion). to an sec. Any attempt apply obtains 940.04(2)(a) a a consensual performing to physician to would be unconstitutional prior viability abortion Further, it any attempt apply under Roe v. Wade. via- a consensual abortion after a physician performing with the newer sec. 940.15 bility would be inconsistent action and establishes for penalties which limits such it.
646 conclude, To we construe sec. plain language 940.04(2)(a), Stats., apply to Black's alleged actions. It is a feticide statute only. Accordingly, we reverse order of the circuit court and remand for proceedings with consistent this opinion.2
2 arguments The ACLU raised several in its amicus brief which here briefly First, we address. ACLU contends 940.04, Stats., inapplicable adjudged because it was McCann, facially in Babbitz v. Supp. unconstitutional 310 F. (E.D. McCann, Larkin 1970), v. 293 Wis. Supp. 368 F. (E.D. 1974). holding in Babbitz apply Wis. does not to sec. 940.04(2)(a). Babbitz only constitutionality decided the of sec. 940.04(1) (5) in the of physician being prosecuted context abortion. Larkin performing under sections these for 940.04(1) only Moreover, and relied on Babbitz. addressed subject this court is bound on the federal law State v. pronouncements Supreme of the United States Court. (1983). Webster, n.4, 114 Wis. 2d N.W.2d In Wade, Roe v. Supreme Court held abortion statutes right could not be enforced "in of a to a contravention woman's Connecti by medically competent personnel." clinical abortion Menillo, (1975). cut v. 9, 10 423 U.S. Enforcement of sec. 940.04 (2)(a) has no here such effect.
Second, the ACLU contends that sec. as a whole, properly construed to be abor- limited consensual *8 tions not for and was intended feticide. We address sec. 940.04(2)(a) and attempt any make no to construe other sec- Additionally, agree tions of sec. 940.04. we do not that sec. 940.04(2)(a) apply only was to to consensual abortions. The plain language of the evinces statute an intent otherwise.
Third, 940.04(2)(a), Stats., the argues ACLU that vio- sec. rights lates process prohibited Black's due notice fair conduct. It contends that sec. 940.04 as a whole fell into disuse Babbitz, Larkin, and 1352, after Supp. Supp. F. 368 F. and that relied holdings. Black on those Neither case addressed 940.04(2)(a). constitutionality Further, the plain of sec. the lan- cause reversed and the Court. —Order By this opinion. with consistent proceedings remanded for JUSTICE, (dissenting). I HEFFERNAN, CHIEF crimi- to be in the alleged complaint conduct find the nal, morally reprehensible. despicable extent to the fullest prosecuted defendant should I do not solely law. I dissent because under the possible conclusion that sec. majority's with agree In the conduct Stats., charged. 940.04(2)(a), applies however, charged only is not case, Black the instant first-degree "abortion," charged with he also with 940.23(1), impris- and false sec. under injury reckless offenses for these 940.30; conviction onment under sec. term of twelve to maximum prison him a subjects years. words, "even apparently plain
It has been said and in they in which arise from the context divorced function, creators intended them which their creators meaning accurately not convey therefore, a con- only, It within impart. intended to an idea." word, word, can communicate any text that Deposit Corp., Leach v. Federal Ins. 860 F.2d 1988). (5th Cir. 940.04(2)(a), case, reads sec. In this the majority context, to conclude Stats., and without isolation pros- that language plainly unambiguously 940.04(2)(a) and, further, "feticide" cribes charge proce- cannot be for an abortive medical used 940.04(2)(a) gave guage Black fair notice that his actions proscribed were law.
Finally, argues ACLU enforcement of sec. 940.04 (2)(a), Powers, Separation and contra- violates public argument. policy. venes We find no merit either *9 dure. Because these conclusions cannot be reached 940.04(2)(a) when sec. is read and in har- naturally with mony other provisions of the statute,1 and (2)(a) because the language sub. sus- reasonably ceptible to more than one meaning, application plain meaning rule, in this situation, is inappropriate. Therefore, I dissent.
This case arises because the defendant, Glenndale Black, was charged with "abortion" for allegedly caus- the death of ing his unborn child as a result of an assault on his wife. Black contends the statute under which he was charged, 940.04(2)(a), was intended to apply only to a medical abortion proce- 940.04, Stats., Section entirety provides: its (1) Any person, mother, 940.04 Abortion. other than the intentionally destroys who may the life of an unborn child be fined $5,000 imprisoned not more than or years not more than 3 or both. (2) Any person, mother, other than the who does either of the followingmay imprisoned years: be not more than 15 (a) Intentionally destroys quick child; the life of an unborn or (b) by Causes the death the mother an act done with intent destroy unnecessary prove the life of an unborn child. It is causing the fetus was alive when the act so the mother's death was committed. (3) Any pregnant intentionally destroys woman who the Ufе of her unborn child or by who consents to such destruction another may imprisoned be fined not more than $200 or not more than 6 months or both. (4) Any pregnant intentionally destroys woman who the life quick of her unborn child or who consents to such destruction imprisoned years. another not more than (5) apply therapeutic This section does not abortion which: (a) performed by physician; Is (b) necessary, Is physicians or is advised other as neces-
sary, mother; to save the life of the (c) emergency prevents, performed Unless an in a licensed maternity hospital. In this section being "unborn child" means a human from conception the time of until it is bom ahve. *10 that, although contends state dure. 940.04(2)(a) and years ago thirty-seven enacted was for assaultive used to charge never before been has nevertheless, the stat- death, resulting in fetal conduct medical both enough proscribe broad to arguably ute from assaultive resulting and fetal death abortion conduct. single of meaning any phrase determining
In
it
light
to look at
in
statute,
necessary
it is
or word
a
Theatres, Inc. v. State.
whole statute. Standard
Highways,
Div.
2d
Transp.,
Wis.
Dept.
of
of
(1984). "A
subsection
statutory
349 N.W.2d
vacuum,
be consid-
be
in a
but must
may not
considered
. ." Aero
as a whole.
.
reference to the statute
ered in
Parts,
Transp., 78 Wis.
2d
Dept.
Inc. v. State
Auto
(1977).
instance,
In this
235, 239,
For sub. done with of the mother an act who causes the death child the life of an unborn destroy intent it is years, not more than 15 unnec- for imprisoned the act so that the fetus was alive when prove essary committed. As used the mother's death was causing must here, "act the death the mother" causing an 940.01, medical abortion because secs. implicate 940.02, 940.03, Stats., already penalties provide for homicide. (2)(b),
Moreover, in sub. language stating that the fetus was alive when unnecessary prove it causing takеn occurs, was the mother's death the act (1947), early Stats. from sec. verbatim repealed and restated that was abortion statute 940.04(2)(b), provided: Section 340.095 Stats. to or any substance any administered person
[I]f pregnant or other means on a any instrument used child unless that destroy intent woman with neces- and the abortion was physician was a person necessary to physicians as sary or advised two *11 life, child or mother the mother's and the preserve third-degree of result, guilty the actor was died as a thereby mother is In the death of the murder. case fetus to the unnecessary prove it is produced, causing her death was when the act so was alive committed. 940.04(5), provides certain
Subsection they punishable if under thе statute abortions are not (a), subparts requirements forth in to the set conform (c). (b) and 940.04, Stats., was evidence that sec.
Further apply from is clear its to to medical abortions intended part Although not the title is title, "Abortion." language, prevail it can be over its statute and cannot persuasive proper interpretation and indicative of as to Coop. legislative v. Pure Milk Products intent. Organization, 253, 241, 64 Wis. 2d National Farm (1974). Such is the case here where N.W.2d 564 (2)(a) purpose majority is so that the sub. maintains disregarded, plain but then fails title must be that the disregard why ought explain a term which we to (b) (5)(a), unequivocally and in sub. has been embodied (c), therapeutic express provision To for abortions. disregard is unnec- circumstancеs the title under these ignores presumption essary, unreasonable, and statute, in used twice the same that the same words "abortion," term have the same with the occurs here meaning. majority's "plain level, the
At a more fundamental (2)(a) meaning" it with what solution infuses sub. ought legislature and, in said have thinks the process, prin- disregards impairs and well-established statutory ciples of construction. provi- naturally with other
Read accordance (2)(a) language carries statute, of sub. sions possible meaning. Black con- it than one with more only applies to medical abortion. tends that the statute hand, that the lan- on the other contends state, The guage encompass sufficiently both medical broad pregnant to the fеtal death assault abortion and interpretations aof stat- one of several mother. Where language possible, examine ute is court history scope, subject context, matter, relation to its Village object accomplished. intended Steinberg, 2d Shorewood v. 174 Wis. (1993). N.W.2d construing meaning,
In
to determine its
statute
*12
subject
legislative
relating to the statute are
materials
Strykowski
judicial
Wilkie, 81
to
notice. State ex rel.
v.
(1978). In
491, 504,
Wis. 2d
652 Initially, 623, Wis. Laws of Chapter 1953, revised the criminal code and made most revisions effective 1955. The new abortion laws were as sec. proposed 340.08, "Abortion," 340.09, and sec. "Self-abortion." These were combined and 940.04, enacted as titled (2)(a) "Abortion." The text of sec. has remained unchanged since 1953.2 The drafter's Comment sec. in the published Legislative Council Commit- tee Report explains the new law was intended merge laws, three early abortion 351.22 (Producing sec. 351.23 miscarriage), (Attempt- (Murder ing miscarriage) and sec. 340.095 3rd degree).3
The drafter's Comment
is instructive.
It states in
part: "This sectiоn
penalizes
person who performs
an abortion on
Hence,
another."
the drafter
intended
the intentional destruction of an unborn
child
"quick"
by any person other
than the mother
to occur as a
result of one person
an abortion on
performing
another.
"one
Construing
phrase,
person
performing
another,"
abortion
on
consistent with its common
usage,4 leads to the inescapable
conclusion that
fetal death
occurs as a result of a
contemplated,
medi-
340.08, Stats.,
proposed
Section
included
four sub
sections;
two subsections were added before the statute was
enacted in 1955.
3The full text of the
early
three
abortion statutes restated
940.04, Stats.,
provided
Appendix
are
in thе
to this
dissent.
general
applicable
rule is that "in the absence of an
statutory definition,
usage
it is the common
of nontechnical
phrases
presumed
legisla
words and
which is
meant
Sales,
Department
Revenue v. Trudell
Trailer
ture."
Wis.
citing
Ehlenfeldt,
39, 42,
State v.
2d
The Comment further states: "Subsection increases the maximum to 15 if the penalty years fetus (about has the fourth month quickened pregnancy) or if the mother dies from the operation." Legislative Council Comment at 66-67. The refer- unambiguous ence to an forecloses the "operation" even remotest death, statute, fetal referred in the possibility that by any occur means other than a medical abortion on procedure. brief, both Significantly, parties argued the implications this reference. Unlike majority 940.04(2)(a) the state opinion, conceded that nonetheless, to medical applied but, abortions insisted larger, unstated, the statute had a though pur- pose. Remarkably, majority goes further opinion 940.04(2)(a) than state, that sec. holding cannot be used to for charge an abortive procedure. majority no doubt free to ignore drafter's Comment by feels rule in invoking plain meaning utter disregard of least, which at the legislative history, very compels a less simplistic analysis.
The final paragraph Comment provides part:
Analogous legislation. All states have stаtutes on abortions. The type most common penalizes the drug use of a or for purpose pro- instrument ducing miscarriage.
See Legislative Council Comment at 67. The drafter's
reference
all
states' abortion statutes
is useful
terms of
this
placing
statute
in its proper historical
context. In 1953 all states had abortion statutes; how-
*14
abortion
or assaultive
first
fetal homicide
ever,
in the mid-1970's.
states
by
were enacted
statutes
of the
the implications
to arguing
In addition
history
traced the
Comment,
the parties
drafter's
from,
sec.
in,
omitted
included
language
940.04(2)(a)
analysis
until 1955. Historical
from 1849
for the State Wis-
the Revised Statutes
reveals
that "the
Sec. 10
consin, 1849,
133,
provided
Chapter
child,
any injury
quick
of an unborn
killing
wilful
if it
be murder
child,
of such
which would
the mothеr
mother, shall be deemed
in the death of such
resulted
This language
in the
degree."
first
manslaughter
until
the criminal
substantially
unchanged
remained
alto-
1953,
in
when it disappeared
code was revised
to the
to include the "injury
The last statute
gether.
in 1955
340.11,
sec.
was
language,
repealed
mother"
"The omission
940.04, Stats.,
sec.
was enacted.5
when
indicates
in the revision of a statute
of a word or words
Nat.
Cardinal v. Leader
its
meaning."
an intent
to alter
Co.,
(1992);
Ins.
388, 480 N.W.2d
166 Wis. 2d
This court considered legislature dence from when 940.04, Stats., to conform with post-Roe revising legisla- As of the revision process, abortion law.6 part implications tors were informed of the constitutional Appendix. See Ultimately, repeal rather than and re-enact instead, text, legislature opted, to create a with a new law attorney staff memoranda.7 One proposed such memo in part: provides 940.15, Stats., pro- also new statute. Section titled "Abortion" vides: (1)In section, "viability" stage develop- this means that of fetal when, judgment attending physician
ment medical *15 particular her, based of or on the facts the case before him there is a reasonable likelihood of sustained survival of the fetus outsidе womb, support. or with without artificial (2) intentionally performs Whoever abortion or an after fetus viability, by unborn child reaches as determined reasonable medi- judgment attending physician, guilty of the cal woman's of a felony. Class E (3) (2) apply necessary Subsection not does if the abortion is to woman, preserve the life or health of the as determined reason- judgment attending physician. able medical of the woman's (4) (3) Any performed viability abortion under sub. after of the child, judg- fetus or unborn as determined reasonable medical attending physician, performed of ment the woman's shall a in hospital inpatient on an basis. (5) performs intentionally Whoever an abortion and who is anot physician guilty felony. of a E Class (6) Any physiсian intentionally performs who an abortion under ' (3) which, use of sub. shall that method abortion of those he or she available, judgment likely knows to be is in his or medical her most preserve Nothing life and health of the or fetus unborn child. requires physician performing in this subsection a abortion employ which, a of judgment method abortion in his or her medical particular her, on based facts of the case before him or would Any physician violating increase the risk to the woman. this sub- guilty felony. of section is a Class E (7) (2) Subsections and s. 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in of violation this section respect or otherwise violates this section with to her unborn child or fetus. 7 case, In this of prepared by attorneys series memos staff part legislative remain drafting records. states, Wisconsin, with abor- including There are or a viability do not use tion statutes which specifying point in approach trimester or week Many of these prohibited. are after which abortions stages preg- prohibit statutes abortions at all nancy, although concept use some determining in the point of the fetus "quickening" prohibited. which abortions are The statutes after exceptions under greatly specifying differ It that permitted. appears which an abortion is prior enacted to the 1973 most of the statutes were changed of Roe v. Wade and have not been decision since that time.
Memo No. 22 further states the new law was 940.04, Stats., and recrеate intended to repeal statute, which, criminal part, "Wisconsin's abortion Wade, under Roe v. 410 U.S. became unenforceable (1973)."8
Other materials make clear legislative sec. 940.04 in the context lawmakers considered enacting medical abortion. Prior *16 proscribing a report Council Staff Legislative prepared entitled on "Legislation Preg- for the 1985 Legislature, I, Part nancy Options." page Report provides: [940.04] on "Wisconsin's current criminal law abortion Attorney General, January 31, 1973, Robert W. On then Attor distributed a letter to "All Wisconsin District Warren unconstitutionality 940.04, Stats., neys" explaining the of sec. in following Supreme the United States Court decisions Roe v. Attorney provides Wade and Doe v. Bolton. The General's letter рart: my opinion effectively It is these decisions have rendered stat- unconstitutional and unenforceable the Wisconsin abortion ute, 940.04, Stats., entirety. reaching sec. in its In this conclusion I 990.001(11), Stats., severability dealing have considered with is unconstitutional because it does not conform to the II, U.S. Court decision in Roe v. Wade." Part Supreme 5, of the "The page Report provides: charge Spe- to the (1) cial Committee . . was to to . examine extent state, which consistent with the U.S. Constitution decisions, and federal court could abortions prohibit (2) and enforce those public hospitals prohibitions; and examine means of rights protecting privacy preg- women and nant of health care safety personnel abortions, who perform and the facilities where abor- tions are performed."9 March, 1993,
As recently as the legislature consid- Assembly ered Bill proposing 940.20(6), charge Special provided: The to the Committee further Legislative Special The Council established the Committee on Pregnancy Options by 24,1984 ballot, pursuant October mail Representative to Special a letter from Marlin D. Schneider. The pregnancy was options Committee directed examine for women perceived which Special reduce the for need abortions. The any changes Committee was not to directed consider in the U.S. Constitution, options but directed examine what are available present within the constitutional framework. Special specifically study ways Committee was directed (1) control; to make information available about methods birth (2) provide funding family planning increased for alternatives (3) abortion; require other guidance counselors, than all school agencies, physicians family planning social service clinics prominently display explaining pamphlets place how to a for child (4) adoption; require guidance training school counselors to receive place adoption, on part how to college child for either as their curriculum, part continuing training both; of their or coverage make available health insurance for childbirth in all instances. Legislative Wisconsin Report Council No. 16 to Legisla the 1985 (October 7, 1985). ture 5 *17 resulting Battery person fetal in to a Stats.,10 death: bodily per- harm to a intentionally causes
Whoever , is know he or knows or has reason to son who she that that in death of the fetus
pregnant, resulting is the consent person carrying, without (Class B felony. B person, is of a Class injured guilty years). punishable (a) legislation proposed create as was intended
This making statutory fetal it a crime to cause subsection (b) pregnant mother; and assault the death according Drafting Manual to the Bill Wisconsin (1993-1994), result- its would fill void "creation" the present ing lack of a "feticide" statute.11 from legislature presumed the law to know Because support, 10Assembly bi-partisan Bill introduced with on Justice and and rеferred to the committee Criminal was read in Safety. bill, proposed This and an identical one Public January, 1994, to the for a vote. Senate in never came floor on Bill 658 read and referred to committee Senate was first 1994; 8; public hearings were on March January held on March unanimously passage to recommend committee voted 23; days legislative later the term ended. seven (1993-1994), Drafting as the The Wisconsin Bill Manual provides form rules and defini suggests, guidance title Legislative by attorneys employed by used tions to be drafting legislation. Reference Bureau Provisions, provides in Creating New Section entitled you part: you provision, create a new ascertain whether "Before accomplish the existing statutory provision to can amend an pro- 4.03(3)(e), Style, purpose." Section entitled Contents and proposed "Always the current to the part: compare vides in law vacuum; usually some Few laws are enacted in a there law. subject already." law on *18 who exists,12
it it is reasonable to assume those do not share the legislation, to introduce this joined (2)(a) to the con- applies that sub. majority's opinion charged.13 duct here the are by majority
The conclusions reached 1) for the reasons: the wholly insupportable following Council Comment makes Legislative drafting Report 940.04, Stats., clear that sec. was intended to apply and merge as well as to restate several "operation," 2) (medical) statutes; legisla- abortion the specific early ture the statute made it a crime to repealed only which 3) mother"; kill by "injury an unborn child 940.04, of sec. makes history legislative clear that it to medical abortion. Conse- applies only in this case quently, truly plain fact which is is that sec. 940.04 was intended to to medical apply only abortion. construction,
Difficult
questions
statutory
ought
not, as the majority
here,
has done
be decided
invo-
cation of abstract
maxims. 2A Norman
jurisprudential
J.
Sutherland
Statutes
Con-
Singer,
Statutory
(5th
1992).
struction
at 6
Ed.
The majority's
§
12
legislature
presumed
knowledge
to act with
of C.G.F.,
a statute. Matter
existing
enacting
statutes when
168
Wood v. American Fam.
62, 69,
(1992);
Wis. 2d
application com rule is neither (2)(a) pelled by language of sub. nor confirmed history. legislative however, to mind Jus does, It call notion that "The tice Frankfurter's admonition: meaning plain, of a statute are its because words *19 merely oversimplification." plain, pernicious also (1943) Monia, v. U.S. 424, States United (Frankfurter, dissenting). J., legis- might policy good public it to enact
While majority fill the statutes that the lation to void our by the cоn- noted, that function has been allocated has legislature, Those who not this court. stitution to proposed Assembly apprehended Bill 163 readily that are not lacuna in our law. For reasons passage. apparent not the this bill of But it is failed prerogative responsibility rec- nor court to this tify legislative I would affirm the decision shortfalls. the trial court. Abrahamson
I am authorized to state Justice joins in this dissent.
APPENDIX 940.04, Progression Leading Of To "Abortion" § Statutes "Progression from is clear of Statutes" It language 940.04, "Abortion," § restates appeared earliest statute which Wisconsin's abortion 1947, 133, 11, which, 1849, into three Sec. and. evolved Ch. statutes, It 351.22 and 351.23. secs. abortion proscribed "[t]he equally clear that the statute which willful mother," quick child, by killing injury unborn to the of an repealed was in 1953. Sec. Ch. *21 1955. proposed Language not The new abortion laws were 340.08 340.09 "Self-
recreated. as "Abortion," and § § abortion." These were combined and enacted bodily against as crimes life and § security. text, below, has remained un- 1955. touched since 940.04 Any person, (1) "abortion" other § intentionally destroys than mother, who may the life of an unborn child be fined not imprisoned more than or $5,000 not more 3 years than or both. Any person, (2) other than the who mother, may impris- following does either of the be years: oned not more than 15 Intentionally destroys (a) the life of quick an unborn or child; Causes by (b) the death of the mother destroy an act with done intent to life of an unborn child. It is unneces- sary prove that the fetus was alive
when the act so causing the mothеr's death was committed. peutic abortion which: who consents to such destruction (6) This section does not destroys not more than months or both. consents to such destruction be fined not more than destroys the life of her unborn child or who (3) Any pregnant Any pregnant imprisoned the life of her unborn woman who woman who not more than 2 $200 apply by or quick intentionally intentionally another imprisoned to a thera- years. another child or may performed by physician; (a) Is necessary, (b) I or is advised 2 oth- physicians necessary, er to save the life of the mother; emergency prevents, (c) Unless an performed maternity in a licensed
hospital. (6) In this section "unborn child" means a conception human being from the time of un- til it is bom alive.