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Lawyers battle in court over fate of abortion rights in Wisconsin

Chuck Quirmbach
Judge Diane Schlipper's courtroom, as oral arguments were held Thursday at the Dane County Courthouse, over a motion to dismiss a challenge to a Wisconsin law banning almost all abortions in the state.

A Dane County judge may rule soon on a Republican-backed effort to keep in place the 1849 ban on almost all abortions in Wisconsin. Oral arguments on a request to dismiss a Democratic lawsuit aimed at overturning the ban took place Thursday.

Sheboygan County District Attorney Joel Urmanski is the only Republican among three DAs who are named as defendants in the lawsuit filed last summer challenging the abortion ban. Urmanski is also the only prosecutor seeking to have Dane County Circuit Judge Diane Schlipper dismiss the case. The other two DAs including Milwaukee County's John Chisholm are represented in court.

Urmanski's attorney, Matthew Thone, quickly told the judge that the lawsuit backed by Democratic Atty. Gen. Josh Kaul and Gov. Tony Evers is out of place.

"From our perspective, the plaintiffs lawsuit is unprecedented in Wisconsin history. The plaintiffs — the attorney general and other state officials and agencies have sued district attorneys, other state officers — over what amounts to a difference of opinion," Thone said.

Thone said Kaul should just offer an advisory opinion on the 1849 law. But Asst. Attorney General Hannah Jurss told the court that Kaul needs a state judicial ruling on how to proceed with the 174 year-old statute that took effect when the U.S. Supreme Court ended Roe vs. Wade abortion protections eleven months ago.

"It is black letter Wisconsin law that the state officers who could enforce the law at issue are proper parties, including proper defendants to a declaratory judgement action concerning the enforceability of the law," Jurss said.

Much of 100-minute court session then focused on whether the 1849 law has been replaced by abortion restrictions that conservatives pushed through in recent decades. Restrictions that still allowed abortions to continue here. Urmanski's attorney Thone said there was no "implied repeal" of the 1849 ban.

"The fact of the matter here is, a tie goes to the continuing validity of the statute. They have to show that either the statutes are irreconcilable, or that there is a clear legislative intent that subsequent statutes have, you know, operated as substitutes," Thone said.

But state attorney Jurss said Thone is incorrect. She said clarity is needed on the topic of Wisconsin abortion law.

"Because the people need to be able to know, before they act, what is, and is not subject to the criminal sanctions," Jurss maintained.

press conference
Chuck Quirmbach
Wisconsin Atty. Gen. Josh Kaul (D) speaks to the news media Thursday, following oral arguments over the Wisconsin lawsuit attempting to restore abortion rights to more pregnant people in the state.

Also in court was attorney Leslie Freehill, who represents three doctors who are intervening (joining) the case on the side of Kaul.

"My clients are practicing physicians. They don't provide elective abortions. That's not what we're talking about. They're providing care for women in high-risk scenarios. They're providing care for women who walk in the emergency room door, and these physicians need to know --not just these three physicians, but every physician across the state, in every county— they need to know what they can do. Because they make these decisions, not within days and not within hours, or within minutes, but within seconds. They have to know what the law allows them to do," Freehill said.

Judge Schlipper said she'll rule soon on the motion to dismiss the state's abortion case. Then, legal experts say you can likely expect appeals. Milwaukee County Judge Janet Protasiewicz, whose election to the Wisconsin Supreme Court last month will give liberals a 4-3 majority, will be sworn in August 1.

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