A lawsuit against Wisconsin’s abortion ban was filed by Attorney General Josh Kaul more than a month ago – four days after the overturning of Roe v. Wade – is moving forward.
It’s been assigned to Judge Diane Schlipper, who assumed office on Monday after being elected this spring. Per a Dane County courthouse official, no hearing will be set until at least September. The judge is scheduled to review case files on August 31st, after which she will call for more records to be handed over or schedule hearings with the lawsuit’s parties.
The abortion ban in question was first passed in 1849 and heavily revised to be much more restrictive in 1858. It was written before women had the right to vote, and prohibits abortion from the moment of conception except when needed to save the pregnant person’s life. It also criminalizes people seeking abortions, imposing fees of up to $5,000 and jail time of up to 3 years.
Wisconsin has passed more permissive abortion regulations in 1985, after Roe v. Wade was decided by the Supreme Court. The lawsuit alleges that these newer laws directly conflict with, and thus invalidate, the 1849 law. To quote the complaint, “either it is lawful to provide a pre-viability abortion, or it is not. Either it is lawful to provide an abortion to preserve the mother’s health, or it is not.”
The lawsuit comes as medical providers scramble for clarity on what, exactly, is legal to provide in Wisconsin.
For more on why this case was brought, I called up Dr. Sheldon Wasserman, an OB-GYN and a plaintiff in the lawsuit. He’s also chair of the Wisconsin Medical Examining Board, which oversees the licensing, disciplining, and regulation of physicians in the state.
Dr. Wasserman detailed the Medical Board’s concerns, saying, “The Medical Examining Board deals with the laws as they are. Which laws are on the books and how clear are they written? … When I saw Roe v. Wade being overruled and no longer the law of the land, it became concerning for the Medical Examining Board because we have to look at laws, we have to look at what’s on the books. So it becomes very important to us that we have clear, concise, clearly delineated laws that are written well before us so that we can render judgment.”
Dr. Wasserman says with conflicting laws on the books, the Medical Examining Board lacks the clarity it needs to do its job. And he’s even more concerned that the old law doesn’t take into account new advances in medicine.
Speaking about 1849, he says, “They didn’t even have real medicine back then. It was 1849. It was before antibiotics. It was before viruses [were discovered], before bacteria [was discovered], before everything. All of a sudden, now we’re following some law from 1849, written poorly, that doesn’t make sense, and that we’re supposed to interpret? We want some kind of clarification as a Board. Doctors across the state want some clarification. What is the law? What do you want to accomplish? What does this mean?”
That clarification could come from a judge’s – or justices’, if the ruling is appealed to the state supreme court – ruling on which of the laws are enforceable. Clarification could also come from the legislature, which could pass a new abortion law or strike out one of the old ones.
To the legislature, Dr. Wasserman, a former state legislator, advises, “If the legislature wants to take up a law, why don’t they write a new one, write something that everybody can see, and don’t rely on some 1849 law. They have to do their work, come up with something modern that Wisconsin doctors can work with. And I think the general population should see. People in Kansas had a right and a voice in the matter and I think the citizens of Wisconsin should have that same type of voice.”
Here, Dr. Wasserman is referring to Kansas’ voter’s rejection on Tuesday night of a ballot measure that would have amended the state’s constitution to make abortion no longer a protected right. Had the amendment succeeded, it would have paved the way for an abortion ban.
But abortion may be on the ballot in Wisconsin in a more indirect manner: through the April 2023 election for a state supreme court justice. The Court is currently divided 4-3 along conservative/liberal lines. With the conservative Justice Patience Roggensack retiring, control of the court will be decided in this April election.
Should the lawsuit on Wisconsin’s 1849 abortion ban be appealed to the state’s highest court, it could very well be heard after that election. Meaning this election will be one avenue that Wisconsin voters will, in a roundabout and delayed way, get a say on abortion laws in the state.
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