Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Wednesday, July 3, 2024 | Back issues
Courthouse News Service Courthouse News Service

Wisconsin Supreme Court advances lawsuits seeking constitutional right to abortions

The court's orders putting the abortion-related cases on its docket exposed long-simmering political grudges between its conservative and liberal justices.

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday agreed to hear two cases for enshrining the right to abortions in the state constitution, giving both lawsuits an audience at the highest court of the politically divided state during an election year.

In one of three orders the high court issued on Tuesday, a majority of justices formally accepted Planned Parenthood of Wisconsin’s February lawsuit asking the high court to declare that the state’s 1849 abortion ban statute violates patients’ and doctors’ rights under the Wisconsin Constitution.

The over 150-year-old state law — triggered after the U.S. Supreme Court reversed Roe v. Wade in June of 2022 — is also being challenged by Wisconsin Attorney General Josh Kaul, a Democrat. On Tuesday, the justices decided to let that action bypass the Wisconsin Court of Appeals and go directly to the state Supreme Court on an expedited basis.

None of the orders issued on Tuesday scheduled oral arguments for either of the cases, which will be decided at a future date.

Ever since the U.S. Supreme Court tossed the nearly 50-year-old federal right to abortions, Wisconsin, like other states, has seen flurries of litigation and political maneuvering to determine what kind of access patients will have to the procedure.

The court’s liberal majority was largely responsible for forwarding the two lawsuits on Tuesday, drawing recriminations from conservative justices that the majority was abandoning impartiality, playing politics and inserting itself into policy questions best left to legislators.

In the order accepting Planned Parenthood’s lawsuit, Justice Rebecca Grassl Bradley dissented, accusing the court’s four liberals of “[continuing] their crusade to impose their values on the people of Wisconsin.”

“The people of Wisconsin never consented to unchecked rule by four lawyers who continue to disgrace the institution of the judiciary by entangling this court in policy issues constitutionally reserved to the people and their legislative representatives. This case again marks the court’s perilous entrance into the political arena where it does not belong and further delegitimizes this court as a nonpartisan institution,” Bradley said.

Bradley specifically pointed a finger at Justice Janet Protasiewicz, a liberal whose election to the bench in 2023 shifted the court to liberal control for the first time in more than a decade.

Bradley recalled Protasiewicz’s campaign-trail statements about how the right to abortion is a “value” of hers, which conservatives considered acknowledgements of how she would rule on abortion-related cases, saying the majority’s ruling in Planned Parenthood’s case appears “predetermined."

During her campaign, Protasiewicz blasted Wisconsin’s redistricting maps as “rigged,” then declined to recuse from lawsuits challenging those maps that ultimately resulted in the governor and Legislature adopting maps more friendly to Democrats.

Campaign rhetoric notwithstanding, Protasiewicz appears poised to participate in both abortion-related lawsuits, which Bradley claimed violated the state’s code of judicial conduct.

“Shielding political and policy statements under the guise of ‘values’ does not ameliorate the objective bias tainting Protasiewicz’s ethically improper participation in this case, which petitioners brought only after their substantial financial support for Protasiewicz’s campaign secured her position on this court,” Bradley said.

In a separate dissenting opinion, conservative Justice Brian Hagedorn, who sometimes rules alongside the court’s liberals, similarly accused the majority of playing politics with its "pet issues.”

“The signal to a watching public is that, when certain policy issues touch the right nerve, this court will follow the party line, not the law,” Hagedorn said.

Hagedorn was joined in his dissent by Chief Justice Annette Ziegler, also a conservative.

In a concurring opinion, Justice Jill Karofsky defended the majority against the conservative justices’ broadsides.

Karofsky said Bradley’s attacks “would be more at home in an ill-advised late-night rant on social media than in a judicial writing.” She charged that Bradley was accusing Protasiewicz of doing things she herself has done, namely signaling values while campaigning and granting original action petitions on controversial constitutional issues.

Of Hagedorn's complaint that the majority was bending the rules to accept cases it prefers politically, Karofsky said that “while those allegations might make for good political rhetoric, they lack substance and distract from the core work of the court.”

Nothing is unusual about the state Supreme Court simultaneously hearing two cases whose resolutions may affect one another, and doing so does not mean the majority is breaking the rules or playing favorites, Karofsky said.

“Regardless of one’s views on the morality, legality, or constitutionality of abortion, it is undeniable that abortion regulation is an issue with immense personal and practical significance to many Wisconsinites. Characterizing and reducing abortion to a ‘pet issue’ is disrespectful, demeaning, and derisive to adults and children who have been impacted by abortion laws and litigation,” Karofsky said.

Karofsky was joined in her concurrence by fellow liberal Justices Ann Walsh Bradley and Rebecca Dallet, as well as Protasiewicz.

The state Supreme Court’s third order on Tuesday denied motions from state anti-abortion groups to intervene in Planned Parenthood’s lawsuit. Hagedorn joined the liberal majority in that decision, saying he felt the groups had not met the requirements to be parties in the case and can instead have their voices heard in amicus briefs.

Bradley also dissented from this majority decision, accusing her liberal colleagues of “permitting the principal advocate for abortion rights to be heard while silencing every leading pro-life organization in the state.”

Follow @cnsjkelly
Categories / Health, Law, Politics, Regional

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.