Wisconsin court considers abortion ban challenge

MADISON, Wisc. — A Wisconsin circuit court judge heard arguments Thursday in a suit brought by the state’s Attorney General seeking clarity on the enforceability of an 1849 abortion ban following the Supreme Court’s recent overturn of Roe v. Wade. 

The ban, attorneys representing Democratic Attorney General Josh Kaul and the Wisconsin Medical Examining Board argued, has been effectively repealed by subsequent legislation contradicting it or seeking to regulate legal abortions. Kaul’s opponents, a group of county prosecutors who have said they plan to enforce the ban, held that the Legislature had made its intent clear in 1849 and had subsequently reinforced that position even under the constraints of Roe. 

The 19th-century law is a near-total abortion ban, making abortion a Class H felony for anyone other than the mother and containing no rape or incest exceptions. It was specifically called out as unconstitutional in the 1973 Roe decision. In the years between Roe and the decision that overturned it in last year’s Dobbs v. Jackson Women’s Health, Wisconsin’s rightward-drifting Legislature also passed a number of restrictions on abortion. Assistant Attorney General Hannah Jurss, joined by the Wisconsin Medical Examining Board’s attorney, argued that those rules created a conflict with the old law. 

“The best that District Attorney Urmansky can offer this court,” Jurss said, name-checking Sheboygan County Attorney Joel Urmansky, “is to say that 940.04 sub. 1 should swallow every single one of Wisconsin’s many, many statutes regulating physicians providing lawful abortions.” 

“A whole group of statutes that exist here… they clearly act as a substitute for the 19th-century law.” 

Arguing for Urmansky, attorney Matthew Thome said that the attorney general and Medical Examining Board had no reason to say that statutes passed during Roe’s predominance were meant to contradict the earlier ban at all. He pointed to the introductions of some of those statutes, one of which specifically stated that it was intended to “protect the life of the unborn child to the extent constitutionally permissible.” 

Regardless of changes to public and scientific understandings of abortion since 1849 — Kaul and the Board’s attorneys pointed to the statute’s references to “quickening” as evidence that it was not consistent with modern medicine. Thome argued that they weren’t enough to block the law from coming back into force.

“I don’t think we can sit here and say that a societal consensus has built up on the issue of abortion,” he said. 

Dane County Circuit Court Judge Diane Schlipper opened arguments by saying she would not issue an order immediately on Thursday, and clarifying, before a live-stream audience, that she was there to interpret law, not to make it. Before arriving at Kaul’s request for a declaratory judgment regarding the statute, she considered a motion to dismiss the attorney general’s suit on the basis of a lack of standing. The defendants argued that Kaul faced no threat of harm from their conduct and that it was protected by prosecutorial discretion. 

“The plaintiffs are not subject to potential prosecution by the defendant district attorneys, nor are the district attorneys subject to prosecution by the plaintiffs,” Thome said. “This is as clear of a request for an advisory opinion as the court is ever likely to see. There is no justiciable controversy.” He conceded that intervening abortion providers would have standing, and recommended that disputes over the statute proceed in a refiled action brought by those providers, or that the court simply dismiss Kaul and treat those providers as plaintiffs. 

Jurss pointed to Kaul’s duties to train law enforcement and instruct prosecutors as a reason to keep him in the case. “The enforcers of a statute at issue,” she said, “are proper parties to a declaratory judgment action.” 

Regardless of Schlipper’s decision, the case is likely to eventually wind up in the hands of Wisconsin’s Supreme Court. Kaul’s chances there recently improved with the election of Milwaukee County Circuit Judge Janit Protasiewicz, who is set to be sworn-in in August and repeatedly gestured toward support for abortion rights during her campaign.

Protasiewicz’ appointment would swing the 4-3 majority conservatives held on the high court at the time Kaul filed suit to favor liberals. 

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