Wednesday, July 12, 2023

Strained ruling

Judge Diane Schlipper "said the legal language in the ban doesn’t use the term “abortion” so the law only prohibits attacking a woman in an attempt to kill her unborn child."

The Wisconsin statutes involved are a bit mixed thanks to Roe. The original 1849 statute, preserved in 940.04, was clearly written to prosecute abortionists while leaving the erstwhile mothers unprosecuted:

940.04 Abortion
(1)  Any person, other than the mother, who intentionally 
destroys the life of an unborn child is guilty of a 
Class H felony.
(2) Any person, other than the mother, who does either 
of the following is guilty of a Class E felony:
 (a) Intentionally destroys the life of an unborn 
 quick child; or
 (b) Causes the death of the mother by an act done 
 with intent to destroy the life of an unborn child. 
 It is unnecessary to prove that the fetus was alive 
 when the act so causing the mother's death was committed.
(5) This section does not apply to a therapeutic abortion which:
 (a) Is performed by a physician; and
 (b) Is necessary, or is advised by 2 other physicians 
 as necessary, to save the life of the mother; and
 940.04(5)(c)(c) Unless an emergency prevents, is 
 performed in a licensed maternity hospital.
(6) In this section “unborn child" means a human being 
from the time of conception until it is born alive.

Statute 940.13 makes this exemption of the mother explicit.

940.15, post-Roe, attempts to protect viable babies by regulating abortionists.

The judge, as far as I can tell, ignores the sense of 940.04(1) (the title of the section is "Abortion"!) and claims that the only restriction is that of 940.04(2): feticide. The latest addition to the Wisconsin Supreme Court was quite upfront with her intention to make sure abortion was permissible in Wisconsin again--if this decision is appealed I know how she will vote already, law or no law.

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