Wisconsin’s top Democrats have filed a lawsuit seeking to block enforcement of Wisconsin’s 173-year old abortion ban.
The lawsuit, filed today by Governor Tony Evers and State Attorney General Josh Kaul, argues that a set of Republican abortion restrictions passed over the last several decades negate a much older law banning abortion in most circumstances.
Wisconsin’s first, 1849 abortion law prohibited abortion only after about the midpoint of pregnancy.
But a rewrite of that law, codified in 1858, prohibits abortion at any stage of pregnancy.
And that law is still on the books.
It carries penalties for women seeking an abortion, and to providers who perform an abortion. It does not provide exceptions for a pregnancy that is the product of rape or incest.
The law permits an exception to protect the life of a mother, though as numerous physicians have pointed out, that exception is vague and does not clarify how imminent death must be before a provider can act.
But Kaul says that 19th-century law is too old to be valid, since other state statutes surrounding abortion have been passed within the last few decades.
Kaul says the lawsuit it’s intended to clarify legal issues caused by the overturning of Roe..
“Safe and legal abortion has stopped in the state of Wisconsin. My office has begun receiving questions from sexual assault nurse examiners who are wondering if they can still administer emergency contraception, who are wondering if the 1849 abortion ban has an except for cases of rape and incest. And the reality is, if that ban stays in effect, sexual assault victims in Wisconsin will be required under Wisconsin law to carry their rapist’s baby to term without medical intervention,” Kaul says.
AG Kaul says that several laws clarifying abortion were enacted in Wisconsin while Roe was the law of the land, so the 19th-century law should be considered null and void.
One such Wisconsin law mentioned in the lawsuit was passed in 1985, twelve years after Roe was decided. That law prohibits abortion after a medical professional finds that a fetus is viable to survive outside of the womb, or around 23 weeks.
Kaul also argues that the law should be nullified because the ban has not been enforceable for the last fifty years.
“We also argue that the disuse of the old abortion ban, which has been unenforcable in Wisconsin since 1970, and was only sporadically and disparity enforce prior to that, that that has also rendered the statute unenforceable under principles of fairness and notice,” Kaul says.
The lawsuit points out that Wisconsin’s 173-year-old abortion ban was specifically listed in the historic Roe v Wade case, where the court ruled that the law was unconstitutional.
Kaul says that the lawsuit is not the only path Wisconsin should take to expanding abortion access.
“I think it’s also really important that we continue to pursue legislation. The Governor called a special session that was held just a week ago, and the legislature gaveled in and gaveled out. That was before Dobbs, now that Dobbs has been issued, we need our legislatures to step up and protect reproductive freedom in Wisconsin,” Kaul says.
The legal challenge, issued earlier today, names Kaul, as well as the state Department of Safety and Professional Services, the state Medical Examining Board, and chairperson of the Medical Examining Board, Sheldon Wasserman, as the plaintiffs.
The defendants in the case are top legislative Republicans, including Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos.
The lawsuit follows after Republican lawmakers took no action during a special session to revise Wisconsin’s abortion law. That session, called by Governor Evers, gaveled in and out in under a minute.
Speaking at a press conference today, Governor Evers encouraged Wisconsin residents not to lose hope in abortion access in Wisconsin.
“Currently, we have some momentum on our side, and we are going to have to keep the pressure up. Keep talking about it, if you are represented by Democratic legislatures who believe as you do, find a friend across the state who might have a Republican legislature. It’s hand to hand combat right now, and the more pressure we can put on the other side, the sooner we will get results” Evers says.
Republican candidates for Governor have already fired back at the legal challenge. Frontrunner Rebecca Kleefisch called the challenge an insult and anti-feminist, adding that if elected, she would enforce Wisconsin’s abortion ban.
The lawsuit was filed today in Dane County, and has been assigned to Judge Valerie Bailey-Rihn.
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