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Wisconsin judge: Lawsuit to repeal abortion ban can continue

Case is likely headed to the state Supreme Court where liberal justices will hold the majority come August

A protester's sign says "My body, my soul, my life, my choice. Trust women!!"
Protester Jana Goodman chants and holds up a sign during a march for abortion rights on the 50th anniversary of the Roe v. Wade ruling Sunday, Jan. 22, 2023, in Madison, Wis. Angela Major/WPR

A judge refused Friday to toss out a lawsuit challenging Wisconsin’s 174-year-old abortion ban, keeping the case inching toward the state Supreme Court in a state where debate over abortion rights has taken center stage.

Wisconsin lawmakers enacted statutes outlawing abortion in all cases except to save the mother’s life in 1849, a year after Wisconsin became a state. The U.S. Supreme Court’s landmark 1973 Roe v. Wade ruling legalizing abortion had nullified the ban, but legislators never repealed it. Then, the high court’s decision last June to overturn Roe v. Wade reactivated the statutes.

The state’s Democratic attorney general, Josh Kaul, has vowed to restore abortion access. He filed a lawsuit in Dane County days after Roe v. Wade was overturned, seeking to repeal the ban. Kaul argues the ban is too old to enforce and that a 1985 law that permits abortions before a fetus can survive outside the womb supersedes the ban. Three doctors later joined the lawsuit as plaintiffs, saying they fear being prosecuted for performing abortions.

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Kaul has named district attorneys in the three counties where abortion clinics operated until the Supreme Court overturned Roe v. Wade as defendants. One of them, Sheboygan County’s Republican district attorney, Joel Urmanski, filed a motion seeking to dismiss the case in December.

Urmanski maintains that it’s a stretch to argue the ban is so old it can no longer be enforced and that the 1985 law and the ban complement each other. Since the newer law outlaws abortions post-viability, it simply gives prosecutors another charging option, he contends.

Kaul’s attorneys have countered that the two laws are in conflict and doctors need to know where they stand.

Dane County Circuit Judge Diane Schlipper explained in a written ruling denying Urmanski’s dismissal motion that the 1849 ban makes killing fetuses by assaulting or battering the mother illegal and doesn’t apply to consensual abortion. That means the doctor plaintiffs could ultimately win a declaration that they can’t be prosecuted for performing abortions and hence the case should continue, Schlipper wrote.

The ruling means the lawsuit will continue in Schlipper’s courtroom.

Shortly after the ruling, Democratic Gov. Tony Evers took to Twitter, calling the decision a win.

“This is good news and a critical step in our fight to end our state’s criminal abortion ban and restore the reproductive freedom women had in Wisconsin until #SCOTUS overturned #Roe last June. We must restore access to safe, legal abortion in Wisconsin,” he wrote.

Regardless of how the judge ultimately rules, the case is likely to rise to the state Supreme Court where liberal justices will have a 4-3 majority after progressive Janet Protasiewicz is sworn in on Aug. 1. She stopped short on the campaign trail of saying how she would rule on a challenge to the 1849 ban but said repeatedly she supports abortion rights.