Kaul files lawsuit challenging 1849 abortion ban

Wisconsin Attorney General Josh Kaul filed a lawsuit on Tuesday arguing that the state’s abortion ban, which was enacted into law in 1849, is unenforceable. 

The 1849 law maintains that it is illegal for a physician to perform an abortion unless it is necessary to save the life of the mother. After the U.S. Supreme Court overturned Roe v. Wade last week, ending the constitutional right to an abortion, clinics in Wisconsin stopped providing the procedure so as to not violate the law, which has remained on the state statute books for 173 years. 

The lawsuit alleges that the 1849 law and a separate law passed in 1985, which bans abortion after a fetus is considered “viable” are in conflict with each other. The lawsuit argues that the state has passed a number of laws regulating abortion since the original law was enacted. If there are dozens of modern laws regulating something a nearly two-century old law says is illegal, how can the first law still be effective, the lawsuit asks. 

“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. These are exactly the circumstances where courts hold that the older law may not be enforced — particularly when that law imposes criminal sanctions. Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity.”

The lawsuit, filed in Dane County Circuit Court, is asking a judge to declare the law unenforceable. 

A number of legal questions surrounding the 1849 statute remain hazy since it hasn’t had to be interpreted since the U.S. Supreme Court decided Roe in 1973, yet the end of constitutional protections for women and physicians who get or perform abortions led Planned Parenthood of Wisconsin to stop offering the procedure last week. 

“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 healthcare decision that is right for them,” Democratic Gov. Tony Evers said at a Milwaukee press conference Tuesday.

The lawsuit was filed against the Republican leadership in the state Legislature. Assembly Speaker Robin Vos (R-Rochester) accused Kaul and Evers of breaking the law. 

“Once again we will do Attorney General Kaul’s job and vigorously defend the law. It’s sad that Evers and Kaul want to break the law instead of work with the legislature,” Vos said in a statement just days after the Legislature gaveled in and immediately gaveled out of a special session called by Evers to repeal the 1849 law. “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. I’m confident our courts will see through their tactics and uphold the law.”

After a draft of the Supreme Court’s decision overturning Roe was leaked earlier this year, Kaul said he wouldn’t use any Department of Justice resources to prosecute abortion providers. Milwaukee County District Attorney John Chisholm has said he wouldn’t prosecute anyone under the law and Dane County District Attorney Ismael Ozanne said he would “prosecute only those crimes that keep our community safe and represent our collective values.”

At a debate Monday night, three of the candidates running in the Republican primary for governor, Rebecca Kleefisch, Kevin Nicholson and Tim Ramthun, said they would remove local elected officials who do not follow the law. A fourth candidate, who did not attend the debate, said he would fire officials “who refuse to enforce the law as a matter of set policy.”

The lawsuit is likely to make its way to the Wisconsin Supreme Court, which is held by a 4-3 conservative majority. Conservative Justice Brian Hagedorn frequently acts as a swing vote, but has previously written about his opposition to abortion. 

The ideological swing of the court will be decided in an election to replace retiring Justice Patience Roggensack next April, but Evers and Kaul defended their decision not to wait that long at the Tuesday press conference. 

Evers said he didn’t want to wait while abortion rights are up in the air while Kaul said he thinks the law is on their side and that he’s won high profile cases before the conservative court in the past.