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Arguments set for Thursday in lawsuit over Wisconsin abortion ban

Attorney General Josh Kaul is trying to block enforcement of a pre-Civil War law that bans most abortions in the state

Dane County Courthouse
Shawn Johnson/WPR

Oral arguments are set for Thursday morning as part of the latest step in a legal battle over Wisconsin’s pre-Civil War abortion ban.

This week’s hearing in Dane County Circuit Court comes as a Republican prosecutor seeks to dismiss a lawsuit that aims to restore abortion rights in Wisconsin.

Democratic Attorney General Josh Kaul filed the lawsuit last summer just days after the U.S. Supreme Court overturned Roe v. Wade. The U.S. Supreme Court’s ruling reinstated Wisconsin’s ban on all abortions except those done to save a pregnant person’s life.

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Kaul argues the 19th century abortion law shouldn’t be enforced because it conflicts with newer state abortion laws. That includes a less restrictive law from 1985, which criminalizes providing an abortion only if it’s done after the point of fetal viability.

In his motion to dismiss the suit, Sheboygan County District Attorney Joel Urmanski rejected the notion that Wisconsin’s abortion laws are in conflict with each other, as well as the AG’s assertion that Wisconsin’s 1849 law is “unconstitutionally vague.” Urmanski, a Republican, has said previously he would enforce Wisconsin’s abortion ban.

Along with Urmanski, Kaul’s suit also names Dane County District Attorney Ismael Ozanne and Milwaukee County District Attorney John Chisholm, both Democrats, as defendants. Urmanski, Ozzane and Chisholm have jurisdiction in the only three Wisconsin counties that were home to legal abortion clinics just before Roe was overturned.

Joining Kaul in filing the lawsuit is the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board and Dr. Sheldon Wasserman, who chairs that board.

In order to prove they have a legal basis to sue, Kaul and the other plaintiffs need to show how they’ve been harmed by the 1849 law, said Barbara Zabawa, an attorney who specializes in health care law compliance.

That could be tricky since no one’s been prosecuted under Wisconsin’s abortion ban in recent history. Even so, a group of doctors that supports abortion rights is intervening in the case, arguing the status quo creates confusion. Additionally, Kaul has argued the ban should be considered obsolete because it hasn’t been enforced in so long.

Zabawa said providers need clarity on the legal status of abortion in Wisconsin.

“We have two sets of laws on abortion in the state,” she said. “I’m hoping that we do get some clarification on how they can either coexist, or if one needs to go away. Because it’s hard, I think, when you have statutes that imply different positions on an important issue like this.”

Gracie Skogman, a lobbyist with Wisconsin Right to Life, acknowledged Thursday’s hearing is a “small step” in a protracted legal saga that will likely make its way to Wisconsin’s Supreme Court.

“From our perspective as pro-life advocates here in the state, every day that this law is in effect, lives are being saved,” Skogman said. “We have met women who have their children here today because of the law and women who have had their lives changed because they have been directed to pregnancy resource centers, and receive life affirming care and support there. And that is where our focus is regardless of the outcome on Thursday, or potentially at the state Supreme Court.”

Wisconsin’s newly elected Supreme Court Justice Janet Protasiewicz has expressed support for abortion rights, and liberals will gain a narrow majority on the court once she takes office in August.

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