MADISON, Wis. (CN) — A lawsuit seeking to invalidate a nearly two-century-old Wisconsin statute outlawing abortion will proceed, after the presiding judge on Friday denied a motion to dismiss the closely watched legal action.
Days after the U.S. Supreme Court upended Roe v. Wade last summer, making abortion law an issue for individual states to decide, Democratic Wisconsin Attorney General Josh Kaul, with the blessing of Democratic Governor Tony Evers, sued to toss the state’s 1849 law making it a felony to perform an abortion, with no exceptions for rape or incest, except if necessary to save the mother’s life.
The 1849 statute became the law of the land post-Dobbs v. Jackson Women’s Health Organization, and abortion has been illegal in Wisconsin ever since.
Kaul argues the 1849 law is unenforceable, in part because a 1985 law banning abortion past the point of fetal viability supersedes the law enacted one year after Wisconsin became a state. The other plaintiffs include the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board and Sheldon Wasserman, an OB-GYN who has served on the Milwaukee County Board of Supervisors since 2016.
The lawsuit initially named as defendants Republican leaders of the Wisconsin Legislature, but they were ultimately replaced by the district attorneys of Sheboygan, Dane and Milwaukee counties.
Despite common reference to the 1849 law as an “abortion ban,” Dane County Circuit Court Judge Diane Schlipper ruled Friday that “there is no such thing as an ‘1849 abortion ban’ in Wisconsin,” holding, essentially, that only the 1985 law making it a crime to perform a consensual abortion after the fetus could theoretically survive outside the womb is applicable.
Schlipper’s rationale drew on State v. Black, a 1994 Wisconsin Supreme Court decision which interpreted a different subsection of the 1849 law as having only to do with feticide, not abortion, even though the title of the overall statute is “abortion.” Because the statute’s two subsections are closely related to the point of being “effectively identical,” it would be absurd to define them differently, the judge said.
Even though, as Schlipper said, “reasonable people may fairly debate whether the ordinary and everyday usage of the word ‘feticide’ encompasses consensual medical abortions,” the meaning of the 1994 state Supreme Court decision is not debatable: the 1849 law involves only feticide, and that term’s legal definition is not synonymous with abortion.
The judge also determined that doctors intervening on the side of the plaintiffs have stated a clear claim for relief because, taking their allegations as true as the court must at the dismissal stage, they face the risk of prosecution if they perform legal abortions in Wisconsin.
Schlipper’s decision denied the defendants’ motion to dismiss the lawsuit, and the case will remain in her court for now.
The high-stakes lawsuit will inevitably reach the state’s highest court, which will have a 4-3 liberal majority when newly elected progressive Judge Janet Protasiewicz is sworn in to replace retiring conservative Justice Patience Roggensack on Aug. 1. Protasiewicz won in a landslide after a bruising, historically expensive campaign in which she emphasized her support for abortion rights but stopped short of saying how she would rule in litigation over the 1849 law.
Kaul celebrated Schlipper’s decision, saying in a prepared statement that it’s “a major victory in our fight to restore reproductive freedom in Wisconsin.”
Lawyers for the defendants could not be immediately reached for comment Friday afternoon.
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