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Wisconsin sues over 1849 abortion ban, contending law is in disuse

Woman speaking behind podium.
Chuck Quirmbach
/
WUWM
Dr. Kristin Lyerly speaks at Tuesday's news conference announcing the state's challenge to an 1849 abortion ban.

Wisconsin Gov. Tony Evers and Atty. Gen. Josh Kaul has filed a legal complaint against an 1849 law that health care providers say has halted abortions in the state.

The legal action comes a few days after the U.S. Supreme Court overturned national abortion rights protections in place for nearly fifty years under the Roe v. Wade decision.

The 173-year-old law bans abortion in Wisconsin, even in cases of rape or incest. The all-male state legislature in 1849 allowed an exception to the ban to protect the life of the mother but required that three physicians sign off on the procedure.

Kristin Lyerly is an obstetrician/gynecologist in Green Bay who is an abortion care provider. At a Milwaukee news conference Tuesday, Dr. Lyerly talked about some of her patients.

"The moms who can't afford to have another baby, the college students who have staked their future on their educations, the parents who are making heartbreaking decisions about a desperately desired but highly complicated pregnancy," Lyerly said.

Lyerly said the exception written into the state abortion ban is unrealistic. She gave the example of a pregnant woman in the northern Wisconsin small town of Eagle River.

"A woman is brought to the emergency department at 2 a.m. on a Sunday morning. She's diagnosed with an ectopic pregnancy, a pregnancy outside of the uterus. This is the number one cause of death in women in early pregnancy. But tell me, where in Eagle River are you going to find two other qualified physicians to evaluate this patient at this time, in this city. And tell me, how sick, is sick enough?" Lyerly asked.

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Chuck Quirmbach
/
WUWM
Wisconsin Atty. Gen. Josh Kaul discusses legal arguments in the newly filed lawsuit.

Lyerly said she supports the lawsuit Evers has authorized Kaul to file against the 1849 statute, asking a court to clarify that the law is not in effect.

Kaul said he makes two main legal arguments.

"Number one, there were a series of laws that were passed subsequent to Roe that provide regulation for lawful abortions in Wisconsin. Those statutes are directly inconsistent with Wisconsin's 19th century abortion ban. It can't be both legal and illegal to provide an abortion to protect the health of the mother," Kaul said.

More recent laws include requiring a waiting period before getting an abortion, that providers display and describe an ultrasound image to patients, and requirements covering the use of abortion-inducing drugs.

Kaul said his second legal argument is that the 1849 ban has fallen into disuse.

"It can no longer be enforced under Wisconsin law. There's a legal doctrine known as desuetude that we argue applies here. Wisconsin's criminal abortion ban has been unenforceable for more than 50 years. Wisconsin actually had a decision that predates Roe, decided in 1970 that invalidated Wisconsin's abortion ban," Kaul said.

That case is Babbitz v. McCann, which involved then Milwaukee County District Attorney E. Michael McCann prosecuting local physician Sidney Babbitz for allegedly having performed an abortion in violation of the law.

Heather Weininger of Wisconsin Right to Life said late Tuesday that the attorneys her group works with on a regular basis are still looking at the state's lawsuit.

She says the action aiming to block the 1849 law is not a surprise, but is disappointing as her group fights abortion rights.

"It's disappointing because it's now come back to the state and we've worked for the last 50 years to ensure this law has stayed on the books. So when this day came it could be enforced," Weininger told WUWM.

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Chuck Quirmbach
/
WUWM
Wisconsin Gov. Tony Evers speaks during Tuesday's news conference in Milwaukee.

Republicans running against Evers in this year's election are also upset. Rebecca Kleefisch says the Democratic incumbent "won’t enforce Wisconsin law to protect the lives of unborn babies."

The lawsuit names Republican leaders of the State Senate and Assembly Speaker Robin Vos as defendants. Vos told the Associated Press that Evers and Kaul's decision to sue is just as misguided as the original Roe vs. Wade ruling.

The state's lawsuit has been filed in Dane County. Given the way other contentious legal issues have gone in Wisconsin, it would seem the case could eventually wind up before the State Supreme Court, which is controlled by conservatives.

Kaul, a Democrat, said his Justice Department has won some important cases before the high court, which is comprised of six women and one man.

Chuck Quirmbach joined WUWM in August 2018. He focuses his longform stories on health, innovation, science, technology, transportation, utilities and business.
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