Wisconsin AG hints at broader abortion lawsuit if state Supreme Court agrees to hear case

Anti-abortion groups say it's wrong for Attorney General Josh Kaul to raise new, constitutional claims in abortion case

AG Josh Kaul stands in front of microphones and cameras.
Attorney general Josh Kaul addresses reporters after the court proceedings conclude Thursday, May 4, 2023, at the Dane County Courthouse in Madison, Wis. Angela Major/WPR

If the Wisconsin Supreme Court agrees to hear a closely-watched abortion lawsuit, Attorney General Josh Kaul says he’ll ask for a ruling on whether a woman’s right to choose is protected by the state constitution.

The pledge by Kaul, made in a petition to the court filed by the state Department of Justice, drew a sharp rebuke from anti-abortion groups, who filed their own legal brief this week calling on justices to reject the argument.

Both filings are connected to a lawsuit Kaul filed in 2022, shortly after the U.S. Supreme Court overturned Roe v. Wade.

Stay informed on the latest news

Sign up for WPR’s email newsletter.

This field is for validation purposes and should be left unchanged.

The attorney general won at the circuit court level when a Dane County judge that said last year that a 19th century Wisconsin law does not prohibit abortions. That ruling has been appealed to the Wisconsin Supreme Court by Sheboygan County District Attorney Joel Urmanski, a Republican who is defending the law.  

Kaul petitioned the Wisconsin Supreme Court on Feb. 27 to bypass the Court of Appeals and take the case. Should that happen, the DOJ told the court it would ask justices to resolve larger constitutional questions.

“Wisconsin women also deserve clarity on their state constitutional rights,” read the DOJ’s petition, which said the state constitution guaranteed multiple rights, “including a woman’s rights to control over her body.”

In an interview with WPR Wednesday, Kaul said Wisconsinites can have a final, definitive ruling on the enforceability.

“This is a topic that is going to come up in numerous cases in all likelihood in the years ahead,” Kaul said. “I believe it makes sense and will provide greater certainty sooner.”  

He said his argument is rooted in the language of the state constitution pertaining to liberty and equal protection, and in case law which grants protection to bodily autonomy.

Three Wisconsin anti-abortion groups — Wisconsin Right to Life, Wisconsin Family Action and Pro-Life Wisconsin — filed a motion Tuesday asking to intervene in the case, saying Kaul’s petition was “procedurally improper.” They’re being represented by the Thomas More Society and the Wisconsin Institute for Law and Liberty, or WILL, both conservative legal organizations.

“It’s important for the pro-life organizations to be in this flight if the court’s going to consider that question and oppose the attempt to constitutional this issue in Wisconsin,” said WILL attorney Luke Berg.

Berg took issue with Kaul’s suggestions, saying the attorney general cannot add constitutional claims to an appeal of a lawsuit that originally dealt with questions of state law.

“There’s simply nothing in the Wisconsin Constitution that creates a right to abortion, and Wisconsin’s entire history suggests there is no right to abortion in Wisconsin,” Berg said.

Kaul defended his suggestion to take up the question of constitutionality, arguing on appeal it is appropriate to raise any argument to defend a victory in a lower court.

“We now have access to safe and legal abortions restored,” Kaul said. “We should never go back.”

Groups on both sides of abortion debate petition court

The groups fighting Kaul’s petition said Wednesday that they were concerned with having the Wisconsin Supreme Court, where liberals now hold a 4-3 majority, decide abortion questions as constitutional claims.

“We believe this would be just the worst form of legislating from the bench if the Wisconsin Supreme Court were to find by fiat a right to abortion in our state constitution,” said Matt Sande, legislative director at Pro-Life Wisconsin.

Heather Weininger, Executive Director of Wisconsin Right to Life, said in a statement to WPR she is concerned Kaul’s tactic could give the court too much power to decide abortion issues.

“That the attorney general is attempting to take this issue from the people of Wisconsin is unjust and unwise,” Weininger said in a statement.

In addition to Kaul’s petition, anti-abortion advocates have also filed a separate lawsuit with the court.

Planned Parenthood of Wisconsin announced last month it was asking the court to take up the issue because the “urgent circumstances” directly impact the health of the state’s residents.

Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said the group’s legal argument centers around the first section of the state constitution, which says that all people have certain inherent rights including “life, liberty and the pursuit of happiness.”

“In these inherent rights are bodily autonomy and integrity and the right to self determination,” Velasquez said in February.