Wisconsin AG Josh Kaul files lawsuit challenging near-complete abortion ban passed in 1849

MILWAUKEE — Wisconsin’s near-complete abortion ban adopted in 1849 lay dormant for so long, even as other abortion bans were passed, that courts should declare the earlier law unenforceable, Democratic Attorney General Josh Kaul argues in a lawsuit filed Tuesday.

While the 1849 law bans abortions from the time of conception unless it’s necessary to save a mother’s life, a subsequent law enacted in 1985 — years after the U.S. Supreme Court declared abortion a constitutional right — only bans abortion after fetal viability and includes an exception for saving a mother’s life or health.

“The pre-Roe and post-Roe Wisconsin laws thus directly conflict if both were applied to abortion,” the lawsuit states. “Either it is lawful to provide a pre-viability abortion, or it is not. Either it is lawful to provide an abortion to preserve the mother’s health, or it is not.”

While there’s no legal consensus on whether the 1849 law is still in effect, the threat of prosecution under the law led Planned Parenthood of Wisconsin to halt abortions in the state after the Supreme Court tossed out the protections guaranteed under Roe.

“We will never stop fighting to ensure every Wisconsinite has the right to consult their family, their faith and their doctor and make the reproductive health care decision that is right for them,” Democratic Gov. Tony Evers, who authorized the lawsuit, said at a Milwaukee press conference Tuesday.

The lawsuit was filed in Dane County Circuit Court on Tuesday against Assembly Speaker Robin Vos, R-Rochester; Senate Majority Leader Devin LeMahieu, R-Oostburg; and Senate President Chris Kapenga, R-Delafield. Besides Kaul, the plaintiffs are the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board and the latter group’s chair, Sheldon Wasserman.

“Abortion isn’t health care and for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v. Wade decision over 50 years ago,” Vos said in a statement. “I’m confident our courts will see through their tactics and uphold the law.”

A spokesperson for LeMahieu said he was out of the office and would try to comment on the lawsuit Wednesday. Kapenga did not immediately respond to a request for comment.

Heather Weininger, executive director of the anti-abortion group Wisconsin Right to Life, stated, “We are disappointed, but not surprised to see that our top elected officials refuse to do their jobs and enforce the laws on our books.”

She added that her group would work with the Legislature to fight the lawsuit.

Possible scenario

UW-Madison law professor David Schwartz said the case is “very likely” to end up before the Wisconsin Supreme Court, where Kaul would have a “reasonable chance of success.”

The Wisconsin Supreme Court has a 4-3 conservative majority. Its occasional swing voter, Justice Brian Hagedorn, once wrote Planned Parenthood was “a wicked organization more committed to killing babies than to helping women” and said Roe should be overturned. The court could have a liberal majority next year with an election to replace retiring conservative Justice Patience Roggensack.

But Kaul and Evers on Tuesday defended filing the lawsuit while the state’s highest court retains a conservative majority. Evers said he didn’t want to wait to challenge the law with abortion rights in flux, and Kaul said he thinks the law is on their side in this case. Kaul also noted he has won significant cases at the state high court despite its conservative makeup.

The legal uncertainty and disruption in Wisconsin and other states in the wake of Friday’s decision should have kept the U.S. Supreme Court from making such a ruling, Schwartz said.

“One of the factors that the court is supposed to consider in whether to uphold or overrule a precedent is the disruption and confusion that might result from it,” Schwartz said. “And they didn’t give sufficient weight to that element, to that factor.”

Kaul has already said he wouldn’t divert state Justice Department resources to prosecute people under the law, but his Republican challengers almost certainly would.

On Tuesday, Kaul said the 1849 law uses outdated terminology and leaves doctors and others uncertain of what the law provides for.

“That law cannot fairly be said, after 50 years of being invalid, to represent the will of the people of the state of Wisconsin,” Kaul said.

Two days before the nation’s highest court overturned Roe, the Republican-led Legislature rejected Evers’ call to repeal the state’s near-complete ban. Evers then announced on Saturday that he would offer clemency to anybody charged and convicted under the law.

County level

Bucking the other district attorneys in counties with abortion clinics, Sheboygan County District Attorney Joel Urmanski told TMJ4 he would enforce the state’s near-complete abortion ban. Planned Parenthood had provided pill abortions in Sheboygan before Friday’s U.S. Supreme Court ruling.

Milwaukee District Attorney John Chisholm on Friday signed a letter pledging not to prosecute people who provide or support abortions, while Dane County District Attorney Ismael 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.

At the same time, anti-abortion groups have made clear their intention to shore up Wisconsin’s near-complete abortion ban and see it enforced.

And at a Monday night Republican gubernatorial candidate debate, three top-tier candidates — former Lt. Gov. Rebecca Kleefisch, management consultant Kevin Nicholson and Rep. Timothy Ramthun, R-Campbellsport — said they would fire district attorneys and sheriffs who refuse to enforce Wisconsin’s 1849 law. Candidate Tim Michels’ campaign on Tuesday said he would remove district attorneys “who refuse to enforce the law as a matter of set policy.”