Wisconsin Attorney General files suit to challenge 1849 abortion law

The attorney general says Republicans had an opportunity to fix the issue at a special session last week but instead gaveled in and gaveled out.
Published: Jun. 28, 2022 at 1:34 PM CDT|Updated: Jun. 28, 2022 at 7:19 PM CDT
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MADISON, Wis. (WBAY) - Wisconsin Attorney General Josh Kaul (D) has filed a challenge to Wisconsin’s 1849 law banning nearly all abortions in the state.

On Tuesday, a suit was filed in Dane County Circuit Court and seeks to make the state’s abortion law unenforceable. The defendants are three Republicans--Wisconsin Senate President Chris Kapenga, Wisconsin Senate Majority Leader Devin LaMahieu, and Wisconsin Assembly Speaker Robin Vos.

The state’s law was set to go into effect after the United States Supreme Court overturned the 1973 Roe v. Wade decision that guaranteed abortion rights on a federal level. The Supreme Court’s ruling turned abortion laws back to the states. Wisconsin’s 1849 law outlaws abortions even in the case of rape or incest. Abortion would be allowed when needed to save the mother’s life.

Since Friday’s ruling, the attorney general says he’s already started to see the impact here in the state.

“My office has begun receiving questions from sexual assault nurse examiners who are wondering whether they can still dispense emergency contraception, who are asking whether there’s an exception under the 19th century abortion ban for cases of rape and incest.”

Kaul says if the 1849 abortion ban remains in place, there is no exception.

However, he argues in the 20-page lawsuit that Wisconsin has other abortion laws on the books that supersede that.

“There are a series of laws that were passed subsequent to Roe that provide regulation for lawful abortions in Wisconsin.” For example, he brings up a law passed in 1985 which prohibits abortions after a fetus has grown enough to survive outside the womb.

He also argues Wisconsin had a different law on the books in 1970, before Roe v Wade, that determined the state’s abortion ban to be illegal.

“Those statutes are directly inconsistent with Wisconsin’s 19th century abortion ban. It can’t be both legal and illegal to provide an abortion to protect the health of a mother,” Kaul said.

Speaker Vos replied with a written statement, “Once again we will do Attorney General Kaul’s job and vigorously defend the law. It’s sad that Evers and Kaul want to break the law instead of work with the legislature. Abortion isn’t health care, and for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v Wade decision over 50 years ago. I’m confident our courts will see through their tactics and uphold the law.”

Kaul says the administration tried last week. The governor called a special session and Republicans gaveled in and gaveled out.

“If legislators think there should be an abortion ban in Wisconsin, they should go into session and pass that legislation -- and I’m confident the governor will veto it -- but legislators, if they want this law enforcement, to stand by it.”

AG Kaul said, “Access to safe and legal abortion stopped in Wisconsin last Friday. With this lawsuit, we are fighting to restore reproductive freedom in Wisconsin. The Republican-led Legislature’s failure to act during last week’s special session has left Wisconsin law regarding abortion in a state of uncertainty. This lawsuit is asking the court to clarify that Wisconsin’s 19th century abortion ban with no exceptions for rape or incest has not gone back into effect.”

“Wisconsinites have been repeatedly and willfully failed by their Republican legislators who sat around and watched this happen in slow motion and didn’t do a single thing to help. Now, Wisconsinites face the alarming reality of the consequences of Republican inaction,” says Wisconsin Gov. Tony Evers.

For details of the complaint, read on. CLICK HERE to read the full complaint.

The complaint filed by the attorney general states there is a conflict when it comes to abortion law in Wisconsin.

“The Wisconsin statutes contain two sets of criminal laws that directly conflict with each other if both are applied to abortion. In these circumstances, it is well settled that the older law cannot be enforced. Specifically, Wis. Stat.§ 940.04—which originated in the mid-1800s, at a time when Wisconsin women did not even have the right to vote—has been superseded and cannot be enforced as applied to abortions,” reads the complaint.

“Wisconsin Stat. § 940.04 states a very broad ban, without exceptions that are now widely accepted as appropriate and necessary. It provides that it is a criminal felony to destroy the life of an unborn child at any point after conception unless necessary to save the pregnant woman’s life. Nationally, these broad bans were rarely, and disparately, enforced historically and not enforced at all after the Supreme Court’s decision in Roe v. Wade.

“Subsequently, the Wisconsin Legislature enacted different criminal laws applicable to abortion after the point of viability and with broader exceptions for the pregnant woman’s health. In addition, the Legislature passed various other laws with specific parameters under which physicians may lawfully provide abortions after conception.

“The pre-Roe and post-Roe Wisconsin laws thus directly conflict if both were applied to abortion. 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. These are exactly the circumstances where courts hold that the older law may not be enforced—particularly when that law imposes criminal sanctions.

“Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity. This Court should hold that Wis. Stat. § 940.04 has been superseded and cannot be enforced as applied to abortions,” reads the complaint.

The complaint continues:

“First, Wis. Stat. § 940.15 prohibits abortion only “after the fetus or unborn child reaches viability” but Wis. Stat. § 940.04(1) would prohibit any abortion ‘from the time of conception.’; Second, Wis. Stat. § 940.15 recognizes exceptions where an abortion is necessary to preserve the life or health of the pregnant woman. But Wis. Stat. § 940.04 would only make an exception when necessary to save the pregnant woman’s life.

“Wisconsin Stat. § 940.04 would also directly conflict with Wis. Stat. § 253.107 if Wis. Stat. § 940.04 were applied to abortion. Wisconsin Stat. § 253.107 prohibits abortion only after the ‘probable postfertilization age of the unborn child is 20 or more weeks,’ and offers an exception in the case of a ‘medical emergency.’ But Wis. Stat. § 940.04(1) would prohibit any abortion ‘from the time of conception’ and would make an exception only when necessary to save the pregnant woman’s life.

“Similarly, chapter 253′s broad regulatory framework for the conditions under which physicians may lawfully provide abortions also directly conflicts with Wis. Stat. § 940.04 if Wis. Stat. § 940.04 were applied to abortions. That framework establishes that physicians act lawfully when they comply with the extensive regulatory provisions for their medical practice.”

The attorney general says there are many conflicting statutes passed since that 1849 law

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