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Courts Would Likely Find Wisconsin's Law Still Suffers From Constitutional Infirmities
MADISON - Wisconsin Attorney General J.B. Van Hollen issued an informal legal opinion today concluding that the United States District Court would not lift the injunction that currently prevents the enforcement of Wisconsin's partial birth abortion law, Wis. Stat. В 940.16. The informal opinion was issued in response to correspondence received from Senate Republican Leader Scott Fitzgerald and Assembly Speaker Mike Huebsch. The lawmakers asked the Attorney General for an opinion in light of the United States Supreme Court case, Gonzales v. Carhart, which recently upheld the constitutionality of a 2003 federal law regulating certain abortion procedures.
Attorney General Van Hollen's legal opinion states that Gonzales did not overrule the United States Supreme Court's decision in Stenberg v. Carhart, a decision issued in 2000 that found a Nebraska partial birth abortion law to be unconstitutional. The Attorney General's opinion reasons that the Gonzales Court concluded the federal statute was constitutional on its face because the law contained a narrow and precise definition of the partial birth abortion procedure. Wisconsin's law, however, is more like the broader Nebraska law found to be unconstitutional in Stenberg. In light of these considerations, the Attorney General's informal opinion concludes that the state could not prevail on a motion to lift or vacate a 2001 district court order that enjoined the state from enforcing Wisconsin's partial birth abortion law. The Attorney General's opinion further concludes that the ongoing injunction preventing state prosecutors from enforcing state law does not prevent federal prosecutors from enforcing the federal law.
Wisconsin's partial birth abortion statute was enacted in 1998 and its constitutionality was challenged in federal court. In 2000, the United States Supreme Court in Stenberg declared a similar Nebraska law to be unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000). The Supreme Court also vacated a United States Seventh Circuit Court of Appeals' decision regarding the constitutionality of Wisconsin's statute, and remanded the Wisconsin case back to the appeals court for reconsideration in light of the Stenberg decision. Planned Parenthood v. Doyle, 530 U.S. 1271 (2000). On remand, the Seventh Circuit determined that Wisconsin's statute shared the same constitutional infirmities as the Nebraska statute invalidated in Stenberg. Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001). On May 25, 2001, the district court enjoined the Wisconsin Attorney General and Wisconsin District Attorneys from enforcing Wis. Stat. В 940.16.
Congress adopted a federal ban on partial birth abortions in 2003. 18 U.S.C. В 1531. On April 18, 2007, the U.S. Supreme Court upheld the constitutionality of the statute. Gonzales v. Carhart, ___ U.S. ___, 127 S.Ct. 1610.