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Abortion's future could play out in Wisconsin courts for years if Roe v. Wade is overturned

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Abortion Rights Demonstration

From left center, Sean Larson, Jessica Roder and Holly Gale attend a protest outside the state Capitol in Madison on Tuesday, a day after a leaked draft opinion suggests the U.S. Supreme Court intends to overturn the 1973 case Roe v. Wade, which legalized abortion nationwide.

On paper, Wisconsin’s statute banning abortions — which has never been repealed but has been unenforceable for nearly 50 years after the U.S. Supreme Court’s landmark ruling in Roe v. Wade — would once again become the law of the land if the court repeals Roe this summer as expected.

In practice, the future of abortion in Wisconsin could play out in the courts for years to come.

Attorneys and other legal experts on both sides of the question were still processing Justice Samuel Alito’s leaked majority opinion and formulating strategies Wednesday. But a few legal avenues were emerging.

Abortion-rights groups, for example, could argue that the Wisconsin Constitution guarantees the right to privacy, the same basis upon which the high court found the U.S. Constitution protected a woman’s right to abortion. Groups could also argue that the state Constitution’s recognition of a right of liberty also protects a woman’s right to choose an abortion.

“On the other hand, a group opposed to abortion could bring a lawsuit in the opposite direction to declare that unborn children are persons entitled to protection under the Wisconsin Constitution’s right to life,” said Dan Lennington, deputy counsel at the conservative legal group Wisconsin Institute for Law and Liberty.

Wisconsin’s suspended abortion ban isn’t the only state law that would be in play. A related statute prohibits abortions after the fetus has reached viability — the same standard established by Roe — but carves out an exemption for women whose health could be endangered by continuing the pregnancy. Abortion-rights groups could argue the “health” exemption extends to a woman’s emotional and mental health.

Another avenue abortion-rights proponents could argue is that a Wisconsin law that has lain dormant for so long, like the 1849 statute that bans abortions in all cases except for when the mother’s life is in danger, not for rape or incest, is unenforceable. A legal theory known as the desuetude doctrine allows statutes that haven’t been enforced over a period of time to lapse.

Democratic Attorney General Josh Kaul has cited that doctrine as a way to challenge the state’s long-suspended ban. Kaul stopped short of saying whether the Department of Justice would challenge the ban, saying agency attorneys are examining all options. Still, he predicted “very significant litigation.”

“This is a hugely important issue,” UW-Madison law professor David Schwartz said. “I would expect a preemptive lawsuit seeking a declaration clarifying the ban is still valid and enforceable. I think it will be a big mess.”

The venue for resolving those arguments, the state Supreme Court, is currently dominated by conservative justices. But in 2023, with conservative Justice Patience Roggensack’s upcoming retirement, liberals have a chance to gain a court majority.

Conservative Justice Rebecca Bradley once called abortion a “holocaust of our children,” though she made those comments in the 1990s and later apologized for them. Fellow conservative Justice Brian Hagedorn, who has sometimes served as a swing vote, once wrote Planned Parenthood was “a wicked organization more committed to killing babies than to helping women” and said Roe should be overturned.

For now, Lennington said, “The only thing preventing a district attorney and the police from investigating and prosecuting a crime under the abortion statute is Roe v. Wade.”

Up in the air

Wisconsin’s three district attorneys in counties with abortion clinics haven’t said whether they would enforce the ban, though Milwaukee County District Attorney John Chisholm told multiple media outlets he doesn’t believe prosecutors and law enforcement will want to get involved in abortion enforcement. Dane County District Attorney Ismael Ozanne did not respond to a request for comment.

Kaul told the Wisconsin State Journal on Tuesday he has no plans to enforce a ban.

In any case, Planned Parenthood of Wisconsin said it would stop providing abortions in the state if Roe is overturned unless courts have determined the state’s ban cannot be enforced, spokesperson Mike Murray said.

But if nothing is done, emergency room doctors faced with a pregnant woman in distress would have to call their hospitals’ attorneys to see if they can legally perform an abortion, he said.

“You’re going to have attorneys probably playing a pretty significant role in whether or not incredibly sick pregnant women can get the health care they need in Wisconsin,” Murray said. “We certainly do not think the abortion ban should spring back to life.”

The Associated Press contributed to this report.

Top 10 Wisconsin political stories of 2021 (based on what you, the readers, read)

2021 was another big year in Wisconsin politics. Sen. Ron Johnson said some things. Voters elected a new state superintendent. Gov. Tony Evers and Republicans clashed over mask mandates. Michael Gableman threatened to jail the mayors of Madison and Green Bay. Here are 10 political stories you, the readers, checked out in droves.

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Since the start of the outbreak, Gov. Tony Evers has issued multiple public health emergencies and a series of related orders. 

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Sen. Ron slammed the impeachment over the weekend as “vindictive and divisive,” and possibly a “diversionary operation” by Democrats to distract from security lapses at the U.S. Capitol.

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"I wouldn’t run if I don’t think I could win," said Johnson, who is undecided on a re-election bid. 

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The board had previously not required masks in schools after some in the public voiced opposition.

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With a new order announced, Republicans may be forced to start the process all over again to vote down the governor's emergency order and accompanying mask mandate, but the most likely outcome appears to be an eventual court decision.

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Fort McCoy officials acknowledge there were initial problems with food supply, but that and other issues are being addressed.

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The idea is in its infancy and all options, including declining to pursue anything, are on the table.

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Gableman has asked the court, which plans to take up the matter on Dec. 22, to compel the two mayors to meet with him.

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Deborah Kerr said she has also voted for Republicans and tells GOP audiences on the campaign trail for the officially nonpartisan race that she is a "pragmatic Democrat."

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Limbaugh died Wednesday at 70.

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