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A breakdown of the main legal arguments in Wisconsin's abortion law case

Wisconsin's Democratic attorney general Josh Kaul is suing to block the state's 1849 abortion ban.
Maayan Silver
Wisconsin's Democratic attorney general Josh Kaul is suing to block the state's 1849 abortion ban.

The legal challenge to Wisconsin’s 1849 abortion ban, that was at the center of the recent state supreme court race, is finally making its way to Dane County Circuit Court.

The 1849 Wisconsin law bans all abortions except to save the life of the mother. Roe v Wade prevented the law from being enforced. That is until last June, when the US Supreme court overturned cases that protected abortion rights for about 50 years.

Democratic Attorney General Josh Kaul’s question — is the 1849 law enforceable? He is asking a Dane County Circuit Court judge to say “no.”

"We filed the lawsuit arguing that the 1849 ban cannot be enforced in Wisconsin for two reasons," said Kaul at a reproductive rights Shabbat even at a local Milwaukee synagogue in late February. "One is that there's a doctrine in the law that if laws have gone unenforced for a lengthy period of time, that they can't all of a sudden become enforced, it's unfair to people, it's known as desuetude. Usually, that's applied where you have a law that has been enforceable; just nobody is enforcing it."

Kaul is asking for what’s called a “declaratory judgment” that the 1849 ban is unenforceable.

Kaul says bans around the country like the one from 1849 in Wisconsin were very rarely enforced and usually only when a mother would die from an abortion. He says that, in addition to the 50-year unenforceable nature of the law under Roe, makes the law unfair.

"The second argument that we are making is that the law was impliedly repealed. What that means is usually, when a law is taken off the books, it's repealed," said Kaul. "There's a law that very clearly says this law is no longer in effect, and now there's a new law in effect. But there are also cases where the legislature, by its actions, can be viewed as repealing a law."

Kaul says more recent abortion laws — like one passed under Republican Gov. Scott Walker that banned it after five months of pregnancy — can be viewed as having accomplished that repeal. He says sometimes the legislature’s older regulations conflict with newer ones and become inoperable.

Rick Esenberg, of the conservative Wisconsin Institute for Law and Liberty, or WILL, is not one of the lawyers on the case but is familiar with the issues. In response to the claim that the law is too old to enforce, Esenberg says:

“There are laws that were passed in 1849 that are still on the books today. This statute was amended several times. It is not a law that nobody knew about because abortion is a very salient issue,” says Esenberg. “You know, it's not the old kind of law that addresses something that nobody thinks about anymore today.”

Esenberg says of the claim that more recent, less restrictive laws have impliedly repealed the 1849 ban. "That's a tough argument because the lodestar of implicit repeal is legislative intent. So, a judge would have to find that the legislature intended to repeal the old law and wasn't simply attempting to enact a restriction on abortions that would be in compliance with Roe vs. Wade for so long as Roe versus Wade was in effect."

Esenberg says it’s clear the legislature enacted the newer laws because they needed to be in compliance with Roe v. Wade.

In the case in Dane County Circuit Court Thursday, Attorney General Kaul is suing three district attorneys, because they can prosecute abortion providers. He’s asking Judge Diane Schlipper to void the law.

Schlipper has taken up a motion to dismiss brought by one of defendants: Sheboygan District Attorney Joel Urmanski, a Republican. Urmanski argues that Kaul is interfering with the discretion of prosecutors to make charging decisions. Urmanski also alleges that Kaul does not have the ability to sue in the first place, what’s called “standing.”

Urmanski claims Kaul and the other plaintiffs aren’t harmed by the law because no one has yet been prosecuted under it. UW politics professor Howard Schweber says there's the possibility of future prosecutions under the law and the law's effect on the availability of abortion providers.

An extended conversation with politics professor Howard Schweber.

Schweber adds, “Kaul’s claim of standing is that as the Attorney General, he has the authority to bring this lawsuit to prevent confusion, so that lawyers around the state and state officials will know what the law is on this point. And that's the basis of his being there."

More recent abortion laws are also still on the books that have more lenient interpretations of when abortion should be criminalized, like an 1985 law that criminalizes abortions only after the point of viability. That's when a fetus is said to be able to live outside of the womb, estimated around 24 weeks. Under that 1985 law, abortions are also permitted to save the life of the mother after viability.

Schweber notes any decision made by the trial court — on standing, other arguments in the motion to dismiss, or on the claims the law should be blocked — will not end the proceedings.

“All the important questions will be decided by the Wisconsin State Supreme Court,” says Schweber. “And since there aren't, as far as I know, any particular issues of fact or evidence that need to be worked out: [such as] who saw what? There aren’t events at issue here, as far as I know, there may be testimony about health consequences and risks and things like this, that would be relevant and appropriate that will establish a record. But I think those facts are really very well known.”

Ordinarily, an appeal of the trial court’s decisions would go to the court of appeals. But Schweber says there is a process for expedited review that the Supreme Court can grant, and this would be a very appropriate case for that.

In relation to these preliminary trial court proceedings, Schweber says if Judge Schlipper grants the motion to dismiss, that ruling will be appealed. “I don't think that she will,” he says.”[As] it seems to me that there are substantive issues that have been put on the table here that require some sort of resolution. About the limits of prosecutorial discretion, for example, but the interaction of two different laws and the same subject, there are a number of legal issues that need to be resolved. So I don't think the motions to dismiss has a very good chance of succeeding.”

If [the motion to dismiss] is granted, however, that will be appealed, Schweber says. “That will go up to the Wisconsin Supreme Court. And if the Wisconsin Supreme Court were to uphold the dismissal, all that would happen is somebody else would bring a case, you know, presumably the next day. It’s much more likely that this case will go to trial.”

Schweber says the trial court will set the agenda, the list of questions, or at least the starting set of questions that the Wisconsin Supreme Court will work from. “[The parties are] free to raise other questions. It's called sua sponte,” says Schweber, “meaning ‘on their own volition’ that can raise other issues. But these will be the issues that the lawyers have argued and briefed. So whatever issues arise that come out in the trial, those are the ones that will be presented the state Supreme Court for resolution.”

On that note, Schweber addressed a potential additional claim: that the 1849 law is unconstitutional. That’s an argument that a law violates the federal or state Constitution. In Roe v. Wade, the US Supreme Court found that bans on abortion violated the due process clause of the 14th amendment. “I suspect Kaul isn't raising an argument under the Wisconsin State Constitution because the Wisconsin Constitution doesn't have an equivalent [due process] clause,” says Schweber.

“There is, however, a guarantee of fundamental rights [in the Wisconsin Constitution],” he says. “And I have to say I'm a little bit surprised that he isn't making the substantive argument that the 1849 law at least is so restrictive, that it infringes on the fundamental rights of women in Wisconsin.”

Schweber thinks the constitutionality claim will be raised at some point in the proceedings, even if solely at the Wisconsin Supreme Court level.

Maayan is a WUWM news reporter.
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