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Wisconsin attorney general asks court to invalidate 1849 abortion ban

Whether the 173-year-old law is enforceable became pressingly relevant after the U.S. Supreme Court removed constitutional protections for abortions last week.

MADISON, Wis. (CN) — Wisconsin’s attorney general, supported by the governor, went to court on Tuesday to challenge the enforceability of a near-total ban on abortions passed by state lawmakers in the mid-19th century, a law now facing renewed scrutiny since the U.S. Supreme Court overturned Roe v. Wade.

Governor Tony Evers and Attorney General Josh Kaul, both Democrats facing reelection in November, announced their legal challenge as they and other liberals scramble to protect state-level abortion services in the wake of America’s highest court’s decision in Dobbs v. Jackson Women’s Health Organization on Friday, which threw out a nearly 50-year-old nationwide constitutional right to abortion and sent shockwaves throughout the country.

In the Dane County Circuit Court lawsuit, Kaul is a plaintiff in his official capacity as attorney general, along with the Wisconsin Department of Safety and Professional Services, Wisconsin Medical Examining Board and its chair Sheldon Wasserman, an OB-GYN who has served on the Milwaukee County Board of Supervisors since first being elected in 2016.

Defendants named in the filing include Wisconsin Senate President Chris Kapenga, R- Delafield; Senate Majority Leader Devin LeMahieu, R- Oostburg; and Wisconsin Assembly Speaker Robin Vos, R-Rochester. None of the legislators immediately responded to a request for comment on the lawsuit Tuesday afternoon.

The Democratic leaders’ complaint opines that Wisconsin’s 1849 abortion statute—enacted one year after the territory became a state—is unenforceable because it conflicts with post-Roe criminal laws applicable to abortion that have superseded it.

The 1849 law makes it a Class H felony for “anyone, other than the mother, who intentionally destroys the life of an unborn child” unless it is necessary to save the mother’s life. It contains no exceptions for cases of rape or incest.

But Kaul's complaint points out that, in 1973, Roe specifically listed Wisconsin’s 1849 law as an unconstitutional statute criminalizing abortion. Post-Roe, the Wisconsin Legislature passed laws prohibiting abortion after either 20 weeks or viability, as well as a network of laws laying out specific guidelines for how physicians should perform abortions, the complaint says.

“The pre-Roe and post-Roe Wisconsin laws thus directly conflict if both were applied to abortion. Either it is lawful to provide a pre-viability abortion, or it is not. Either it is lawful to provide an abortion to preserve the mother’s health, or it is not. These are exactly the circumstances where courts hold that the older law may not be enforced—particularly when that law imposes criminal sanctions,” according to the complaint.

“Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity,” the lawsuit says.

Since the Dobbs bombshell, Evers and Kaul have made their pro-abortion rights positions clear, reiterating as much on Tuesday.

“We will never stop fighting to ensure every Wisconsinite has the right to consult their family, their faith, and their doctor and make the reproductive healthcare decision that is right for them—a decision that should be made without interference from politicians or members of the Supreme Court who don’t know anything about their life circumstances, values, or responsibilities,” Evers said Tuesday.

“Access to safe and legal abortion stopped in Wisconsin last Friday. With this lawsuit, we are fighting to restore reproductive freedom in Wisconsin," Kaul said. The attorney general also took the Republican-majority Legislature to task for refusing to repeal the 1849 law in a special legislative session called by Evers in the days leading up to the Dobbs decision.

Tuesday’s lawsuit faces an uphill battle in the Badger State. Not only is the Legislature firmly controlled by Republicans, but the Wisconsin Supreme Court, where the lawsuit is almost certain to end up, also has a 4-3 conservative majority.

For one thing, Justice Brian Hagedorn, a conservative who has surprised some by siding with the liberal minority in some high-profile cases, has a history of publicly opposing abortion and once called Planned Parenthood a “wicked organization” in a blog post as a law school student, among other views he had to publicly address as a candidate in 2019.

Evers faces one of a handful of anti-abortion Republican gubernatorial candidates in this fall’s midterms, all of whom have said they will enforce the 1849 law and do not endorse any additional exceptions. The governor, for his part, has said he would grant clemency to anyone charged under the law.

Wisconsin also has laws on the books mandating that women must receive an ultrasound before undergoing an abortion, as well as in-person counseling followed by a 24-hour waiting period. State law also requires that women seeking abortion-inducing drugs see the same doctor on two separate visits.

The latter was one of a group of laws challenged by Planned Parenthood in a lawsuit that saw a bench trial in December of 2020. No decision has come from the Madison federal court in that case, and it was stayed on Monday until at least July 25 in light of the Dobbs decision.

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