No wonder Appeals Judge Mark Gundrum upheld the language in an anti-choice state law -- a lot of it was his!
Gundrum was the author of an Appeals Court opinion, released last month, that booted a request from Planned Parenthood of Wisconsin for clarification of language in an anti-abortion law.
Some of the very language Planned Parenthood was concerned about was language Gundrum himself proposed in 2007. Yes, Gundrum the judge blessed the language of Gundrum the legislator. The state Code of Judicial Conduct tells judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Does a judge ruling on his own language do that?
Before Gov. Scott Walker elevated Gundrum to the District 2 Appeals Court, Gundrum was a Waukesha County circuit judge and before that, he was a state representative from New Berlin boasting a 100% approval rating from Wisconsin Right to Life. As such, in June 2007, he proposed a law purportedly designed to ensure that women seeking abortions were doing so voluntarily.
Gundrum was the primary sponsor of AB 427, which included the following language:
The physician who is to perform or induce the abortion shall determine whether or not the woman’s consent is, in fact, voluntary. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone if she states that she wishes to call for assistance.
He also was the sole sponsor of an amendment that inserted, after the word "determined" in the first line quoted above, the words "by speaking to the woman in person, out of the presence of anyone other than any person working for or with the physician."
Gundrum's 2007 bill failed. The representative moved on to circuit court and then the appeals court.
In 2012, the legislature passed and Gov. Walker signed a bill that contained language almost identical to that in the Gundrum bill.
The physician who is to perform or induce the abortion shall determine whether the woman's consent is, in fact, voluntary. Notwithstanding par. (c) 3., the physician shall make the determination by speaking to the woman in person, out of the presence of anyone other than a person working for or with the physician. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone.
Planned Parenthood went to court seeking clarification of the law. The agency does not want to face a forfeiture up to $10,000 and civil liability if a doctor in good faith – but wrongly -- believes that a woman is seeking an abortion voluntarily or if the woman claims after an abortion that it was not voluntary. The law does not include a “good faith” exception for liability.
Dane County Circuit Judge Richard G. Niess agreed with Planned Parenthood, but the state appealed.
Gundrum and Appeals Judge Paul F. Reilly, who joined in the decision, said that Planned Parenthood did not show its doctors believed they might be at legal risk.
In a dissent, Appeals Judge Lisa S. Neubauer said that Planned Parenthood did express specific concerns.
In addition, she wrote, "The majority does not deny that the specter of forfeitures and civil liability under the statute is real—only that Planned Parenthood has not sufficiently expressed concern."
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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