Arguments in abortion ban case to be heard in Dane County Circuit Court next month

Oral arguments are scheduled next month in a case that could decide whether Wisconsin’s 1849 abortion ban is enforceable. 

The lawsuit, filed by Attorney General Josh Kaul in the days following the U.S. Supreme Court’s decision that overturned a nationwide legal right to abortion, challenges Wisconsin’s 1849 abortion ban, which makes no exceptions for rape or incest.

The high court ruling, in Dobbs v. Jackson Women’s Health Organization, reinstated Wisconsin’s law, under which providers could be prosecuted as felons if they offer abortion services.

The arguments will happen a month after voters decide whether the state Supreme Court remains conservative or flips to a liberal majority for the first time in many years.

Kaul’s complaint, which is supported by Democratic Gov. Tony Evers, argues the 1849 abortion ban is not enforceable because it conflicts with statutes that were enacted after it. 

“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,” the lawsuit states. “These are exactly the circumstances where courts hold that the older law may not be enforced—particularly when that law imposes criminal sanctions.”

Kaul says in the lawsuit that Wisconsin abortion providers cannot be held to the “diametrically opposed” laws and people deserve clarity on the law. 

The complaint was originally filed against Senate President Chris Kapenga (R-Delafield), Senate Majority Leader Devin LeMahieu (R-Oostburg) and Assembly Speaker Robin Vos (R-Rochester). However, the Republican leaders argued that they weren’t the proper parties in the case because they wouldn’t be involved in enforcing the law. They were dismissed from the case. 

Kaul replaced the Republican leaders with Sheboygan County District Attorney Joel Urmanski, Dane County DA Ismael Ozanne and Milwaukee County DA John Chisholm as the defendants. The DAs are located in counties where Planned Parenthood clinics ceased providing abortion services. 

Urmanski, who is the only Republican of the three DAs, filed a motion in December asking for dismissal, saying Kaul was the wrong person to bring the suit because he faces no personal consequences if it’s enforced. Ozanne and Chisholm have not done the same. 

Three physicians — Kristin Lyerly, Jennifer McIntosh and Christopher Ford — have joined Kaul’s case as intervenors, essentially adding them as parties to the case. Arguing that the 1849 law is unconstitutionally vague, they’re asking for an injunction that prevents prosecutors from charging doctors for violating the abortion law. Urmanski said the physicians would be the correct parties to bring case, since they could face prosecution, but the doctors would need to successfully argue no possible application of the law could be constitutional for the claims to hold up.

Kaul and the other plaintiffs responded to Urmanski’s motion to dismiss in January, arguing that they are the correct parties. The brief argued Kaul is a correct party because the Department of Justice has “statutory duties regarding prosecution, advice, and training that require an answer about which statutes are enforceable as applied to abortion.”

The oral arguments, which will be heard by County Circuit Court Judge Diane Schlipper on May 4, represents the first significant progress in the case that many expect could one day go before the Wisconsin Supreme Court.