Perspectives
September 19, 2023 | By Dan O’Donnell
Policy Issues
Accountable Government Constitution

Justice Is The Whim Of A Judge

As abortions resume in Wisconsin, Dan O’Donnell tears apart the ridiculous ruling on which Planned Parenthood is relying.

Now it’s whistle blower vs the pistol holder; case dismissed. They’ll lock you up and throw away the key witness,” underground hip hop star Sage Francis raps on his seminal 2005 political anthem “Slow Down Gandhi.”

As prescient as that line is given the political prosecutions of the past two years, it has nothing on the one that follows: “Justice is the whim of a judge, check his chest density. It leaves much room for error and the rest left to destiny.”

To great fanfare from local media, Planned Parenthood resumed performing abortions in Milwaukee and Madison this week in direct violation of Wisconsin’s law forbidding the practice. Only Wisconsin’s law never actually forbade abortions at all; at least not according to Dane County Circuit Court Judge Diane Schlipper, who ruled in July that the Wisconsin statute titled “Abortion” doesn’t cover abortion.

Justice really is the whim of a judge.

In denying a motion to dismiss a lawsuit challenging Wisconsin’s abortion law (which would seem unnecessary if said law doesn’t actually deal with abortion), Judge Schlipper didn’t just become the personification of a rap lyric, she gave the four liberals who now control the Wisconsin Supreme Court some legal cover (albeit nonsensical) for their whims.

Since the moment the United States Supreme Court overturned Roe v. Wade last June, liberals have searched in vain for some reason, any reason, that Wisconsin’s abortion law is invalid. Until Schlipper’s ruling, they seem to have settled on the fact that the law was passed in 1849 and is now somehow too old to be enforced. This, of course, makes about as much sense as suggesting slavery should be brought back in Wisconsin since the law banning it was passed in 1848 but, hey, no one ever accused liberals of being particularly astute legal scholars.

Exhibit A is alleged Judge Schlipper, who may have never read a law before, let alone analyzed one. Her first clue that Wisconsin Statute § 940.04 might deal with abortion is the fact that it is literally titled “Abortion.” Yet Schlipper, who seems to understand how asinine her own logic is, is careful to note in her opinion that “although the title of this statute is ‘Abortion,’ statutory titles ‘are not [according to state law] part of the statutes.’ If there is any conflict between a statute’s title and its text: ‘text must control over title.’”

Sure, but the statute’s text also, you know, deals with abortion. Wis. Stat. § 940.04(1) holds that “any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” Is an abortionist a person other than a child’s mother? Yes. Is said abortionist intentionally destroying the life of an unborn child? Also yes. Logic would thus dictate that said abortionist would be guilty of a Class H felony.

Not according to the whims of this judge, however. Schlipper argues that this subsection of the statute doesn’t criminalize abortions because a different subsection of the statute also criminalizes feticide.

Wis. Stat. § 940.04(2) provides that “any person, other than the mother, who…either… intentionally destroys the life of an unborn quick child or causes the death of the mother by an act done with intent to destroy the life of an unborn child is guilty of a Class E felony.”

This obviously describes feticide, the act of killing a child in a setting other than an abortionist’s clinic. Since an abortionist presumably wouldn’t kill the mother to end her pregnancy (unless he was really, really bad at his job), this subsection does not apply in this context. It would instead apply in the case of say, a boyfriend furious that his girlfriend was pregnant killed her in a fit of rage.

The clear intent of the authors of this statute is to delineate this from an abortion, as evidenced by the fact that it is more severely punished. Committing an act of feticide under Wis. Stat. § 940.04(2) is a Class E felony punishable by a maximum sentence of 15 years in prison, whereas committing an abortion under Wis. Stat. § 940.04(1) is a Class H felony punishable by a maximum sentence of 6 years in prison.

If both subsections covered the same act, as Schlipper claims, then why are they punishable by such radically different maximum sentences? And why has no one in the 174 years since Wisconsin’s abortion law was written ever before suggested that its prohibition on abortion doesn’t actually prohibit abortion at all?

Is Judge Schlipper the most brilliant legal mind this state has produced in nearly two centuries? Or is she a partisan hack looking to justify her whims with half-baked gibberish masquerading as a judicial opinion?

The answer is as obvious as the likelihood that the four hacks on the Supreme Court will glom onto it as they look for a reason to overturn Wisconsin’s totally-not-really-an-abortion-ban abortion ban. This why it’s so dangerous when justice is the whim of a judge: More powerful judges can snap their fingers and turn their whims into controlling law.

Better check their chest density because a whole lot of room for error is coming when they take up this issue.

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