Post-Dobbs Abortion Law in Wisconsin: A Case for Doctrinal Desuetude

Don’t let the title scare you, I promise this is interesting and (I hope) I’ve made it approachable even for people without a legal-academic background. I’ll quickly include some background on this paper before you dive in.

Background and Summary

Since 1849, Wisconsin has had a law that almost entirely banned abortions for any reason. When Roe v. Wade was decided in 1973, this law was declared unconstitutional. For the next 49 years this abortion law could not be enforced, but it remained a part of Wisconsin law. In 2022, in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade. Suddenly, the 1849 abortion law, having been unconstitutional and unenforceable for almost a third of its existence, was suddenly enforceable again. Maybe.

This paper argues, with fancy academic words, that the law should not be able to suddenly become enforceable once more without first being voted on in the state legislature and becoming law. After all, it was dead for many, many years, and a law which is unconstitutional should not continue to exist, lying in wait for its moment to surprise a future generation which had no hand in its creation.

Wisconsin Attorney General Josh Kaul agrees, and filed a lawsuit to declare that the 1849 law should remain unenforceable as applied to abortions. At the time I publish this, the lawsuit is pending in Dane County Circuit Court, held up by motions to dismiss. It may very well reach the Wisconsin Supreme Court.

I wrote this paper in Fall of 2022 for my 3L class, State and Local Government Law.

Socialist Statecraft: A few Structural Signposts

This is an unedited version of my final paper for my 3L class, Comparative Constitution-Making (Fall, 2022). In the paper I discuss my very basic conception of what a socialist constitution could look like for a future version of the United States based on both (some parts) of Marxist theory and the cultural-political background of the region.

Even A Uniform Won’t Save You: The Story of Lieutenant Nazario

When the Police Decide You’re Guilty, All you Can Do Is Pray For Mercy.

A United States Army lieutenant was mistakenly pulled over while driving home from his duty station. He ended up face down on the concrete, pepper sprayed, and fearing for his life.

The Road – A Mistaken Traffic Stop

On December 5, 2020, at 6:30 p.m., Second Lieutenant Carson Nazario was driving home on US 460 in his newly purchased 2020 Chevrolet Tahoe when Officer Crocker engaged his cruiser’s police lights, initiating a stop. Lieutenant Nazario was not speeding, but rather was pulled over on the mistaken belief that he had committed a traffic violation by lacking back license plates on his vehicle. In reality, Lt. Nazario had not yet been issued permanent license plates for his new car, so had legally taped his temporary tags to his rear window.

Lieutenant Nazario submitted to Officer Crocker’s authority by slowing down and using his turn signal, coasting to the nearest well-lit area to pull over–a gas station under a mile away. Officer Crocker notes in real time over radio, heard by Officer Gutierrez, that he recognized Nazario was pulling over due to his decreased speed and signals. From the moment of the officer’s lights turning on to the moment Lt. Nazario stops at the gas station, only a minute and a half passes. Both officers admit on recordings to knowing and understanding why Lt. Nazario did not pull over immediately on the dark highway, saying it “it happens all the time” and that it happens to Gutierrez “a lot.” Inexplicably, prior to Lt. Nazario parking at the gas station, Officer Crocker reports this stop as a “felony traffic stop,” and a “high risk traffic stop.”

The Gas Station – The Mistake is Revealed

Officer Gutierrez joins the scene, hearing Crocker reporting. Despite having no reason to believe a threat is present, both officers approach the car for the first time with firearms drawn and pointed at Lt. Nazario. The rest is documented below, in all the currently available footage of the scene (though the Lieutenant recorded the encounter with his phone, that video is not released, to my knowledge). As the officers approached, a single glance at the back windshield revealed that their purpose for the stop was mistaken, and the correct move would be to apologize and move on. That is not what happened.

Video 1: Founded Fears

Officer Gutierrez is heard here (footage from Gutiettierez’s body cam) saying Lt. Nazario is “fixin’ to ride the lightning,” slang for being executed, in reference to the electric chair.

At 0:20 Lt. Nazario, with two guns trained on him, says he’s “afraid to get out” of the car. Officer Gutierrez confirms “yeah, you should be.”

At 1:15, Officer Gutierrez pepper sprays Lt. Nazario without provocation. The officers then tell Lt. Nazario to undo his seat belt, which would require him to put his hands down, where they would be hidden from view, and fumble blindly with something the officer cannot see-an obviously bad thing to do with two intense officers training guns at the Lieutenant.

Video 2: Violence

Lt. Nazario announces himself as he takes off his seatbelt to again avoid being shot, and asks for the commanding officer. He is kicked and pushed to the ground and handcuffed, being told that the police are able to do this merely because he wasn’t “cooperating” to a satisfactory degree. This U.S. Army Serviceman begins to cry as the reality of the situation sets in-despite his service, and his sworn oath to protect the United States, these people can do whatever they want to him at that moment and he would be powerless to stop it.

The officers do not notify the Lieutenant of the reason for the stop at any point until after pulling him out of the car.

Video 3: Supervisor Shifts the Blame

The supervisor attempts to blame “the BLM movement” for making Lt. Nazario scared of the police, when in reality this series of events is precisely the kind of thing Lt. Nazario has seen and why he was being so careful – why he pulled into a well-lit area, announced his actions, and did not act when given conflicting orders. He knew to be careful and refuse to give these officers anything they could use as an excuse to see him as a threat and act accordingly.

Complete Body Cam Footage: Officer Gutierrez

Gutierrez exits his cruiser (0:50), joining Crocker, and immediately draws his weapon, pointing it at Lt. Nazario’s vehicle.

Unfortunately, the only full video seems to be from a twisted youtube account that takes pleasure in making compilations of police violence. The actual footage ends at 6:12.

Why It Matters, Beyond the Obvious

This is not an isolated incident, which is exactly why Lt. Nazario knew how this would go and took every precaution to avoid being shot.

This is common practice. Data shows that black people are 64% more likely to be stopped by police, even though they drive 16% less than white people. Black drivers are 115% more likely to be searched during a traffic stop than white drivers, even though contraband is more often found on white drivers. “So, black drivers were stopped disproportionately more than white drivers compared to the local population and were at least twice as likely to be searched, but they were slightly less likely to get a ticket,” one researcher from this University of South Carolina study said. “That correlates with the idea that black drivers were stopped on the pretext of having done something wrong, and when the officer doesn’t see in the car what he thought he might, he tells them to go on their way.”

Those findings are not special. An NYU study in 2020 examining 100 million traffic stops from across the United States found black drivers are 20% more likely to be stopped than white drivers, and are less likely to be carrying illegal contraband than white drivers. The study also found that the disparity shrinks when stops are made at night, when the race of a driver is harder to discern. Another study of the more than 1,000 unarmed people that were killed by police from 2013 to 2019 found a third were black (despite making up only 13% of the population), and of all black people killed by police, about 17% were unarmed, a larger share than any other racial group and about 1.3 times more than the average of 13%.

Even if you think this is uncommon, which it is not, the bottom line is this: all cops wear the same uniform. The cops that will cooperate and let you go when they realize they’ve pulled you over under a mistaken pretense and the cops that will point guns at your face for doing nothing wrong, that will pepper spray you because you don’t know what they want you to do–there is nothing to distinguish them until it is far, far too late. These cops, these people are entrusted with incredible power by the communities they purport to serve. So if they make a mistake, there is nothing you can do. In that moment, you cannot stop them, no matter what they’re doing to you, because they have that all-powerful badge. Anything you do would justify their actions, so even if you bear the uniform and insignia of a U.S. Army Lieutenant, you have to be kicked, pushed to the ground, pepper sprayed, have guns pointed at you and just pray that they don’t decide to kill you. Because if they do, they might get fired. Maybe. But you won’t be there to even see that.

Lieutenant Nazario has filed suit against these police officers (see the complaint below), but that will be an uphill battle against a system that gives police every benefit of the doubt. Even a victory in court won’t prevent the next time he’s stopped from becoming the same scene, or worse, if those officers had a bad day. He’s simply lucky to be alive.