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Republican DA vows to appeal Dane County ruling on Wisconsin abortion law

A final judgement in circuit court this week handed a victory to abortion-rights supporters

A protester has a piece of tape over her mouth that says "patriarchy." She holds a hanger in the air.
Mandy Groves of Madison attends a protest in support of abortion access following the Supreme Court’s decision to overturn Roe vs. Wade on Friday, June 24, 2022, in Madison, Wis. Angela Major/WPR

A Republican district attorney says he intends to appeal a ruling from Dane County, which handed down a victory this week to supporters of abortion rights.

In a final judgement Tuesday, Circuit Court Judge Diane Schlipper ruled that a pre-Civil War state law bans feticide — when someone attacks a pregnant person and destroys the pregnancy — rather than abortions done with a pregnant person’s consent.

Schlipper’s order came in response to a lawsuit from Wisconsin’s Democratic Attorney General Josh Kaul, who sought to block prosecutions of abortion providers under a 19th century law.

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Sheboygan County DA Joel Urmanski, a Republican, and two Democratic district attorneys were named as defendants in the lawsuit. In a statement Wednesday, Urmanski disputed Schlipper’s interpretation of Wisconsin’s law.

“To be clear, I disagree with and intend to appeal the decision,” he stated.

But Urmanski also said he would follow Schlipper’s order, meaning he doesn’t plan to use the 19th century law to prosecute providers of abortions done with a pregnant person’s consent.

“I am obligated to comply with that ruling unless the decision is stayed pending appeal or ultimately reversed,” the statement said. “In my view, the statute plainly applies to abortions and, while it may be that the citizens of the State of Wisconsin would be better served by a different statute, I do not believe it is my job or the role of the courts to make that determination. It is an issue for the Legislature and the Governor to resolve.”

Although Tuesday’s ruling from Schlipper closes the case in Dane County, Kaul acknowledged Wednesday morning that the case could be appealed.

“I expect that it likely will be and so other courts will weigh in on this,” Kaul said in a news conference. “But for now, this is a major win for reproductive freedom in Wisconsin, and we are prepared to defend that victory and reproductive freedom.”

Attorney General Josh Kaul stands in front of a pink Planned Parenthood banner that says
Attorney General Josh Kaul speaks to supporters at a campaign event Saturday, Oct. 8, 2022, in Middleton, Wis. Angela Major/WPR

Final judgment from Dane County affirms earlier ruling

Providers across Wisconsin stopped performing elective abortions in June of last year, after the U.S. Supreme Court overturned Roe v. Wade. They were concerned about being charged under the more than 100-year-old law, which states that “any person, other than the mother, who intentionally destroys the life of an unborn child” is guilty of a felony.

But in September, Planned Parenthood of Wisconsin restarted abortion services at one clinic in Milwaukee and another in Madison, citing an earlier ruling from Schlipper as legal backing. In that ruling in which Schlipper denied a motion from Urmanski to have the case dismissed, the judge foreshadowed this week’s final judgment by opining that the law in question applies to feticide rather than “consensual abortions.”

On Tuesday, Planned Parenthood celebrated Schlipper’s declaratory judgment as confirmation of the legality of abortions in Wisconsin. Planned Parenthood leaders have said they continue to follow other statewide restrictions on abortion, including a ban on the procedure after 20 weeks of pregnancy.

It’s likely the case will eventually be heard by Wisconsin’s Supreme Court, said Howard Schweber, a professor of political science and legal studies at the University of Wisconsin-Madison.

“There is a need for the court to answer that fundamental question: To what extent does the Wisconsin State Constitution protect the right to have access to abortion as part of a larger right to privacy?” Schweber said.

Still, Schweber said, on a practical level, Tuesday’s ruling does not alter the status of abortion in Wisconsin.

“In the short term, this changes nothing,” Schweber said. “We’re exactly where we were after September.”

Several nurses work on computers at a wrap-around counter.
Zoie Hawpetoss, right, and Diane Lopez, left, work in the nurse’s station Friday, May 27, 2022, at Planned Parenthood’s Water Street Health Center in Milwaukee, Wis. Angela Major/WPR

Prior to Roe’s overturn, elective abortions were offered in only three Wisconsin counties — Dane, Milwaukee and Sheboygan. Kaul’s lawsuit named the elected district attorneys representing those three counties as defendants, even though Milwaukee County DA John Chisholm and Dane County DA Ismael Ozanne, both Democrats, have previously vowed not to prosecute abortion providers.

In her ruling Tuesday, Schlipper declined a request to grant a permanent injunction that would have barred prosecutions of abortions under the 1849 law. She wrote that such an injunction is not necessary because all three of the DAs named as defendants have said in court filings that they would comply with the judge’s interpretation of the law.

Wisconsin’s Supreme Court flipped to a 4-3 liberal majority in August when Justice Janet Protasiewicz took office. Protasiewicz, a former Milwaukee County district judge, made support for reproductive rights a central part of her Supreme Court campaign.

It would likely take months for the case to work its way through appeals, and the issue may not be heard by the Wisconsin Supreme Court until early 2025, said Lisa Mazzie, a professor at Marquette University Law School.

“(The Court of Appeals) has a voluminous caseload and things just move slowly,” Mazzie said.