WAUKESHA, Wis. (CN) — A Wisconsin district attorney has appealed a court declaration that a state law from 1849 does not ban consensual abortions, bringing the legal fight over the law one step closer to the state’s highest court.
Sheboygan County District Attorney Joel Urmanski had promised to challenge Dane County Circuit Court Judge Diane Schlipper’s Dec. 5 decision shortly after it was handed down. Matthew Thome, Urmanski’s attorney with the Attolles firm in Milwaukee, filed a notice of appeal with the circuit court on Tuesday, and it was docketed in the Wisconsin Court of Appeals Wednesday morning.
Wisconsin Attorney General Josh Kaul, a Democrat, several doctors and state agencies sued in June 2022 to scrap the nearly 200-year-old law banning abortions except as needed to save a mother’s life. The law was triggered after the U.S. Supreme Court reversed Roe v. Wade but was disputed almost immediately after the landmark decision.
Urmanski is the only one of three district attorneys remaining as defendants in Kaul’s lawsuit to say publicly that he would prosecute abortions under the 1849 law. Milwaukee County District Attorney John Chisholm and Dane County District Attorney Ismael Ozanne, the other two remaining defendants, have both said they will not enforce the abortion ban.
Not that there is an “abortion ban” in Wisconsin, according to Judge Schlipper. In a July decision allowing Kaul’s lawsuit to proceed she said that, under the Wisconsin Supreme Court’s 1994 decision in State v. Black, the 1849 law applies only to feticide, which is not synonymous with abortion.
“There is no such thing as an ‘1849 abortion ban’ in Wisconsin,” Schlipper said in July.
The circuit court judge’s decision earlier this month reaffirmed that interpretation and granted the plaintiffs in Kaul’s lawsuit a declaration that the disputed law does not apply to consensual abortions.
Schlipper’s December decision also granted summary judgment to Dr. Kristin Lyerly, an OB-GYN who performed abortions around Wisconsin, including in Sheboygan, until she temporarily moved her practice out of state when she learned Urmanski planned to prosecute abortions under the mid-19th century statute.
Planned Parenthood of Wisconsin ceased offering abortion services at Wisconsin’s three abortion clinics in Milwaukee, Madison and Sheboygan after the U.S. Supreme Court overturned the federal right to abortions in Dobbs v. Jackson Women’s Health Organization, but the group resumed the procedures at the Milwaukee and Madison clinics in September after a ruling from Schlipper that month.
The reproductive and sexual health care group said this week it will bring back abortion services at its Sheboygan clinic on Dec. 28 in light of Schlipper’s decision two weeks ago.
In a statement Wednesday afternoon, Urmanski reiterated that he believes the 1849 law prohibits abortions except when needed to save the mother's life, but he emphasized that "my position in this case is guided by my understanding of the law, not my own personal values or preferences."
Urmanski’s appeal is currently docketed in the Wisconsin Court of Appeals for District 2 in Waukesha, but the district attorney said in his statement Wednesday that, due to the significance of the case, in the coming weeks he plans to file a petition with the Wisconsin Supreme Court asking it to take the case on an expedited basis without awaiting review by the appellate court.
Regardless, Kaul’s lawsuit is ultimately bound for the high court, which this year switched from a conservative to a liberal majority for the first time in more than a decade.
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