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As many of you may have seen, the Wisconsin Catholic Conference is in a bit of turmoil over the “Compassionate Care for Rape Victims Act.” The Conference, which represents Wisconsin’s bishops, is officially neutral towards the bill, which has been interpreted in Madison and the media as a “green light” for the bill (Consider: GOP State Rep. Terry “Musser, who considers himself pro-life, has said his own qualms about the legislation were assuaged in large part once the Wisconsin Catholic Conference, the public arm of Wisconsin’s bishops, said it did not object to the bill.”). After legislative action by the state Assembly, however, Madison Catholic Bishop Robert Morlino, joined by La Crosse’s Bishop Jerome Listecki, has issued a personal appeal to legislators to oppose the bill.

Key to the whole discussion has been a battle about “legal opinions” by the attorneys for the five Catholic dioceses. According to a report in La Crosse’s Catholic Times, “[Wis. Cath. Conf. Exec. Dir. John] Heubscher said the WCC’s neutrality is based on the unanimous opinion of the state’s diocesan attorneys that a current conscience exemption contained in Wisconsin Statue 253.09 would allow Catholic hospitals and individual physicians to ‘opt out’ of the possibly abortion-inducing treatment the legislation would require.”

In this blog post, I intend to render an alternative legal opinion of my own (though admittedly I’m a few months from being a lawyer).

December 30, 2007

Dear Wisconsin Bishop X:

You have asked me to render an opinion as to whether the Compassionate Care for Rape Victims Act, A.B. 377, would force Wisconsin’s Catholic hospitals to administer emergency contraception in an abortifacient manner. I answer that it likely would.

As you know, A.B. 377 as introduced did not contain a conscience clause exemption for religious hospitals. When the bill came before the Assembly Judiciary Committee, the Republican majority on that committee, under the leadership of Chairman Mark Gundrum, added conscience clause protection to the bill. That exemption did not survive on the floor of the Assembly; an amendment to add that protection failed before the whole Assembly. Thus, the current version of A.B. 377 does not contain a conscience exemption for religious hospitals.

In rendering this opinion, there are three key sources of authority: Wis. Stat. 253.09, the legislative history of A.B. 377, and Wisconsin Constitution Article 1 Section 18.

EXISTING CONSCIENCE PROTECTION

Wis. Stat. 253.09(1) reads: “No hospital shall be required to admit any patient or to allow the use of the hospital facilities for the purpose of performing a sterilization procedure or removing a human embryo or fetus.”

Wis. Stat. 253.09(2) reads: “No hospital or employee of any hospital shall be liable for any civil damages resulting from a refusal to perform sterilization procedures or remove a human embryo or fetus from a person, if such refusal is based on religious or moral precepts.”

The question is whether the administration of emergency contraception, otherwise known as the the morning after pill or Plan B, in a hospital emergency room would constitute “removing a human embryo or fetus.”

The same words are used in two other conscience protection statutes - for registered nurses (441.06(6)) and for doctors (448.03(5)(a)). No Wisconsin case definitively resolves what those words cover. The closest we have is a footnote in a Wisconsin Court of Appeals case that identifies 253.09 as “addressing a hospital’s refusal to honor a patient’s request for an abortion.” State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532, 547 n.8 (Ct. App. 1995). Those who want A.B. 377 to apply to religious hospitals would argue that EC does not constitute an “abortion” as that term was used by the Court of Appeals, and thus a court has already decided EC is not covered.

Medical science confirms that emergency contraception can have the effect of preventing a fertilized egg from implanting in the womb of the mother. This functions as a chemical abortion in Catholic moral theology.

However, this may not bring EC under the scope of “removing a human embryo.” The word “removal” may be interpreted to require implantation. The American College of Obstetricians and Gynecologists says that pregnancy does not begin until implantation. Federal case law also adopts this interpretation of implantation as the beginning. This is also defensible from a plain language standpoint: you cannot remove something unless it is first present. Based on these sources, a Wisconsin court could conclude that mandated administration of EC does not force a Catholic hospital to participate in “removing a human embryo.”

LEGISLATIVE HISTORY

It is presumed that the Legislature in enacting new laws acts with full knowledge of laws already on the books. Kindy v. Hayes, 44 Wis.2d 301, 314 (1969). Certainly the legislative debate surrounding A.B. 377 brought 253.09 to the attention of the Legislature. Yet the Legislature specifically rejected conscience clause protections for religious hospitals on the floor of the Assembly.

Moreover, after the addition of conscience protection in the committee stage, the bill’s sponsors spoke out. State Rep. Marc Pocan, the primary Democratic sponsor, said that the conscience exemption “guts and nullifies the legislation.” State Rep. Terry Musser, the primary Republican sponsor, shared Pocan’s sentiments. (Madison Capital Times, Sept. 19, 2007).

Based on the floor rejection and sponsors’ statements, I conclude that the Legislature did not intend for there to be an exemption for religious hospitals from the Act’s mandates.

A JUDGE’S RULING

“[I]t is a cardinal rule of statutory construction that conflicts between different statutes, arising by implication or otherwise, are not favored and will not be held to exist if the statutes may otherwise be reasonably construed. Strong v. Milwaukee, 38 Wis.2d 564, 570 (1968).” OAG 42-77. In this Opinion, the Attorney General of Wisconsin said that a later law dealing with the administration of contraception amended without specifying an earlier statute limiting the administration of prescriptions drugs to pharmacists.

Based on the legislative history, these canons of construction, and the Attorney General’s OAG 42-77, I expect that a Wisconsin court would hold that “removal” requires “implantation,” and thus 253.09 is no protection from A.B. 377’s mandate that all hospitals provide EC.

WISCONSIN CONSTITUTION

If a Wisconsin court determines that Catholic hospitals are required to administer EC under the Act, as I believe it would, the hospital could respond by asserting its rights under Wisconsin Constitution Article 1, Section 18, the religious freedom provision. “The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted…” The Wisconsin Constitution’s religious freedom provisions are more expansive than the U.S. Constitution’s free exercise protection. State v. Miller, 202 Wis. 2d 56 (1996). These protections may be found to provide a constitutional right for religious hospitals to be free from state mandates to provide certain kinds of procedures. The hospitals would have to affirmatively assert this right after the state sought to enforce AB 337.

Thus, I suggest that Wisconsin’s Catholic bishops oppose A.B. 377. Emergency contraception may act as a chemical abortion by preventing implantation of a fertilized egg, and this would violate Catholic moral teaching. Yet a Catholic hospital would be forced to provide EC to rape victims under A.B. 377. It is likely that a Wisconsin court would find that Wis. Stat. 253.09 does not protect religious hospitals from the mandates of A.B. 377. Thus, the best strategy is to avoid this moral dilemma is to stop the passage of A.B. 377.

Sincerely yours,
DANIEL R SUHR

(I also owe a hat tip to Professor Augros).

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