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WISCONSIN’S ABORTION BAN | THREE DISTRICT ATTORNEYS SUED

AG Josh Kaul now suing 3 district attorneys in case challenging Wisconsin abortion ban

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Democratic Attorney General Josh Kaul on Friday sued three Wisconsin district attorneys in his effort to have a judge rule that the state law banning almost all abortions is unenforceable.

Kaul initially sued three Republican legislative leaders in June. But he changed the defendants to the district attorneys after the GOP legislators continued insisting they shouldn’t be the defendants because they can’t enforce the law.

Two of the three district attorneys Kaul is suing instead — Milwaukee County District Attorney John Chisholm and Dane County District Attorney Ismael Ozanne — have signaled that they wouldn’t enforce the near-complete abortion ban. The third, Sheboygan County District Attorney Joel Urmanski, has said he would enforce it. Each of the district attorneys has jurisdiction in counties where Planned Parenthood provided abortions before the U.S. Supreme Court overturned Roe v. Wade.

In June, Kaul and other plaintiffs asked a Dane County court to void the state’s 173-year-old abortion ban, which hasn’t been enforced since the Roe v. Wade precedent established abortion as a constitutional right nationally.

Kaul initially filed the case against Assembly Speaker Robin Vos, R-Rochester; Senate Majority Leader Devin LeMahieu, R-Oostburg; and Senate President Chris Kapenga, R-Delafield.

Kaul said in his complaint that he needed to know whether the law remains in effect because he advises and consults with agencies and officers charged with enforcing laws.

The pre-Roe law bans abortions from the time of conception with one exception: to save the mother’s life. There are no exceptions for rape, incest or the health of the mother.

In the complaint, Kaul said that a 1985 abortion law — which prohibits abortions after fetal viability but includes an exception to protect the mother’s life or health — conflicts with the earlier, near-complete prohibition.

“Either it is lawful to provide a pre-viability abortion, or it is not,” Kaul said in the complaint. “Either it is lawful to provide an abortion to preserve the mother’s health, or it is not.”

In addition to saying the GOP legislators shouldn’t be sued because they don’t enforce the law, their attorneys in August said the Republican leaders are protected from legal action under a provision of the Wisconsin Constitution that states, “[n]o member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.”

In a Monday letter to the legislators, Department of Justice attorneys representing Kaul said the GOP leaders’ procedural argument about who the right defendants are would cause unnecessary delays that eat up taxpayer money. The DOJ attorneys said Kaul would drop the case against them and oppose their future intervention if they didn’t withdraw the argument that they’re improper defendants.

The Republican leaders did not withdraw their argument by Kaul’s Thursday deadline, and Kaul filed the action against the district attorneys Friday.

Ozanne, Chisholm and Urmanski had not responded to requests for comment.

ledged not to prosecute people who provide or support abortions. And Ozanne said he would use his discretion “to prosecute only those crimes that keep our community safe and represent our collective values.”

“If the voters want a district attorney who prosecutes women for seeking an abortion or licensed providers who are acting in the best interest of their patients, they will need to elect someone else,” said Ozanne, who will be up for reelection in 2024.

Bucking the other district attorneys in counties with abortion clinics, Urmanski told WTMJ-TV in June that he would enforce the state’s near-complete abortion ban.

The case is likely to end up before the Wisconsin Supreme Court, which has a 4-3 conservative majority. The court majority could flip next year with an election to replace retiring conservative Justice Patience Roggensack.


Complete coverage: Supreme Court ends abortion protections; what's next for Wisconsin?

Read complete coverage of the U.S. Supreme Court decision that ends nationwide abortion protections, and what it means in Wisconsin.

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"I'm mad," one 26-year-old demonstrator remarked. "I'm very, very mad. We shouldn't be in this situation in 2022." 

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