Attorney General Josh Kaul on Monday withdrew Wisconsin's support from amicus briefs filed in two court cases that, when filed by Republican former Attorney General Brad Schimel, put the state on the side of limiting abortion access.
The move is one of several Kaul, a Democrat, has made since taking office that support Planned Parenthood and access to reproductive health services.
Planned Parenthood's political arm endorsed Kaul in his 2018 campaign, but the attorney general has also said he will defend state laws even if he does not personally support them "if there is a legally defensible position to take."
This week, Kaul withdrew Wisconsin's support from briefs filed by Schimel in Box v. Planned Parenthood and Preterm Cleveland v. Himes — two cases identified as challenges that could open the door to a reconsideration of the legal right to abortion established by the 1973 landmark Roe v. Wade ruling.
In an interview with the Cap Times, Kaul said his reasoning for withdrawing the state's support on the briefs is twofold. The cases are both "seeking to restrict reproductive rights," Kaul said.
"The restrictions would criminalize certain pre-viability abortions, and the courts that have considered these laws so far have struck them down as unconstitutional," Kaul said. "I think the outcome would restrict reproductive rights. I believe, in my view, the legal position that’s been taken (in the state laws) is incorrect, as courts have found."
Wisconsin also doesn't have laws on the books similar to the Indiana and Ohio laws being challenged, he added.
Kaul's decision to withdraw from the amicus briefs comes a few weeks after he announced that Wisconsin will join 19 other states and the District of Columbia in a lawsuit challenging a President Donald Trump administration policy that would direct tens of millions of federal Title X family planning dollars away from Planned Parenthood.
It also comes as Republican state lawmakers are seeking to intervene with their own taxpayer-funded attorneys in a lawsuit brought by Planned Parenthood against the state of Wisconsin challenging abortion regulations signed into law by Republican former Gov. Scott Walker. Kaul filed a notice of appearance late last month, indicating his intention to represent the state, and said Tuesday he will comment on the specifics of the case in the state's filings. Republicans have argued that, based on the state's challenge of the Trump administration policy and Kaul's Planned Parenthood endorsement, the attorney general can't effectively defend the Republican-backed laws.
"With Attorney General Kaul’s lengthy history of forwarding Planned Parenthood’s agenda, and with Attorney General Kaul not signaling how he plans to defend Wisconsin’s pro-life laws, it is necessary for the Legislature to attempt to intervene in this case," said Senate Majority Leader Scott Fitzgerald in a statement last week.
Although the cases all involve Planned Parenthood, Kaul argued each one is different.
"The Title X case involved different issues from the case in Wisconsin — so these are separate issues that are being presented," Kaul said. "The attorney general’s role is to defend state statutes as long as there is a defensible legal basis for doing so when a state law is challenged. That’s what’s happening in Wisconsin. These two cases are amicus briefs. These are cases that the state of Wisconsin didn't need to get involved with, but chose to. I don’t think they're cases Wisconsin should be involved with."
Box v. Planned Parenthood
This case examines a law signed by Vice President Mike Pence in 2016 when he was governor of Indiana. The law bans doctors from performing abortions if the procedure is being sought because of the gender, race or disability or potential disability of the fetus.
The law also requires abortion providers to dispose of aborted fetal remains through burial or cremation, rather than incinerating them through medical waste disposal.
Supporters of the law have argued it will prevent women from seeking an abortion after learning their child would be born with a condition such as Down syndrome. Opponents have countered that it could pressure women into carrying dangerous pregnancies to term.
After the law was blocked by a district court and the decision was upheld by the 7th Circuit Court of Appeals, the state of Indiana appealed the decisions to the U.S. Supreme Court.
Wisconsin was joined by 18 other states in filing a brief supporting Indiana's position in the case. The brief was filed on Nov. 15 — after Schimel lost his re-election bid but before Kaul was sworn in. Kaul said he thinks it's appropriate for an attorney general to file briefs during the length of his term, and he doesn't take issue with the timing of the filing.
The brief argued that the 7th Circuit had shown an "unprecedented, unlawful hostility to the States’ authority to honor human life and dignity."
In a letter sent to the Supreme Court on Monday, Assistant Attorney General Karla Keckhaver wrote that Kaul was withdrawing the state's support after determining that the amicus brief "no longer represents the legal position of the state of Wisconsin."
The state of West Virginia has agreed to take Wisconsin's place as the lead state on the brief, Keckhaver wrote.
Preterm Cleveland v. Himes
This case examines a law signed by Republican former Ohio Gov. John Kasich last year. The law bans doctors from performing abortions when they know a woman's decision to obtain one is based entirely or in part on a genetic test indicating the fetus might be born with Down syndrome.
Supporters of the law argue, like in the Box v. Planned Parenthood case, that the law prevents discrimination against vulnerable groups. Opponents argue the law violates a woman's right to privacy established by years of Supreme Court precedent.
The law was blocked by a federal judge shortly after it was signed. The state of Ohio appealed the decision in January, and it is currently before the 6th Circuit Court of Appeals.
The state of Wisconsin, under Schimel's direction, filed a brief in June 2018 supporting Ohio's position. West Virginia will also take Wisconsin's place as the lead state on the brief, Keckhaver wrote in a notice to the court.