Wisconsin continues to await a final determination on the fate of our abortion ban, which has remained part of our laws since 1849. This law was effective until the fateful 1973 Roe determination. In a “post-Roe” Wisconsin, the law is once again enforceable and provides nearly complete protection for preborn life, with only a narrow exception for the life of the mother.[1]

 

On Thursday, May 4, 2023, oral arguments were held in the challenge to dismiss our abortion ban. To understand the significance of these arguments, it is also important to understand the background of this case and the consequences for both the pro-life movement and the anti-life movement.

 

Just days after the United States Supreme Court issued the Dobbs decision that returned the abortion issue back to the states, Wisconsin’s Attorney General, Josh Kaul, filed a lawsuit[2] against the President of the Wisconsin State Senate, the Majority Leader of the Wisconsin State Senate, and the Speaker of the Wisconsin State Assembly.

 

Attorney General Kaul argued that there are conflicting criminal laws on the issue of abortion, the defendants are correct as they are officers of the state, and the venue location is correct as the seat of government is in Dane County.

 

While Dane County does house the state capitol, it also housed an abortion facility and is well-known for its liberal leanings, including county circuit court judges. After the three original defendants[3] sought to have the lawsuit dismissed based on the fact they were not the correct defendants, Kaul wasted little time in seeking to amend the lawsuit[4]and find new defendants.

 

The current defendants are the county district attorneys where abortion clinics had been practicing prior to the Dobbs decision. Two of the named defendants, Chisholm and Ozanne,[5] stated they would not enforce the law even before they were added as defendants. The only named defendant to argue against dismissal for the sake of allowing district attorneys to do their jobs without interference is Sheboygan County District Attorney Joel Urmanski.

 

During oral arguments before Dane County Circuit Judge Diane Schlipper, attorneys for DA Urmanski asked the judge to toss out the lawsuit, arguing that Kaul does not have standing and that the current anti-abortion law complements Wisconsin’s previous bans on abortion. If their case is correct, and there is no conflict in the abortion laws, Kaul’s lawsuit is without standing.[6]

 

In response, Assistant Attorney General Hannah Jurss maintained that the ban conflicts with Wisconsin's 20-week ban on abortion, creating confusion that a judge must clarify, and giving Kaul legal standing as Wisconsin’s top law enforcement official. Most telling, attorneys for Kaul have made it clear they intend to refile if the case is dismissed.[7] Regardless of the final decision by the Dane County Circuit Court, the fate of the law will likely be determined by the newly liberal-leaning State Supreme Court.

 

This case is much more than determining if the law is enforceable or not, as the timing of the lawsuit played into the election cycle for Governor and Attorney General of Wisconsin. Democrats took this issue to the top of the ticket and have a vested interest in keeping this issue unresolved in the courts, to make it top of mind for voters. Most recently, the topic of our abortion law became the defining issue in the 2023 spring election that determined the fate of the Wisconsin State Supreme Court.[8]

 

Following the spring elections, which went in favor of the openly anti-life candidate, Judge Janet Protasiewicz, the leaning of the Wisconsin State Supreme Court will shift to favor liberal decisions.[9]

 

Ultimately, it is widely believed that the State Supreme Court, when Justice Protasiewicz takes her seat on the bench in August, will not rule in favor of Wisconsin abortion law. Wisconsin will then revert back to our previous restriction on abortion, at 20 weeks of pregnancy.[10]

 

However, there is also a more damaging outcome from the shift in the court, one in which the State Supreme Court makes a ruling protecting a “right to abortion,” as seen in states such as Montana.[11] A decision of this magnitude could halt the passage of any law protecting life and restricting abortion for decades to come. 

 

The future of Wisconsin’s pro-life law remains uncertain, and we face a potential grave loss in our ability to protect preborn lives, not only in the expected loss of the current anti-abortion ban but also in our future ability to pass pro-life protections. Yet, the pro-life movement can take great joy in the preborn lives saved and women’s lives changed through the absence of abortions in the state in the last year. Many Pregnancy Help Centers across Wisconsin have seen a nearly twofold increase[12] in visits since the overturning of Roe, indicating that many women are able to choose life for their preborn children, and experiencing the supportive services and resources offered by PHCs.[13]

 

While the message of Wisconsin’s Attorney General Kaul, Governor Evers, and anti-life advocates is one of abortion as healthcare, the pro-life movement's message is one of hope and compassion, for both mothers and their pre-born babies. The work of the pro-life movement must be in not only fighting for the protection of our pro-life laws but changing hearts and minds to favor life and impact future elections in our state.

 

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[1] https://docs.legis.wisconsin.gov/statutes/statutes/940/i/04#:~:text=940.04%20Abortion.,of%20a%20Class%20H%20felony.&text=(b)%20Causes%20the%20death%20of,life%20of%20an%20unborn%20child.

[2] Circuit Court Brief (govdelivery.com)

[3] Wisconsin Republican lawmakers replaced in abortion lawsuit (jsonline.com)

[4] 220916Suit.pdf (wispolitics.com)

[5] Wisconsin district attorneys vow not to criminalize abortion (jsonline.com)https://www.jsonline.com/story/news/politics/2022/06/24/dane-county-district-attorney-ismael-ozanne-wont-enforce-wisconsin-abortion-ban-madison/7726298001/

[6] https://pbswisconsin.org/news-item/dane-county-judge-hears-arguments-on-lawsuit-challenging-wisconsins-abortion-ban/#:~:text=Social%20Issues-,Dane%20County%20judge%20hears%20arguments%20on%20lawsuit%20challenging%20Wisconsin's%20abortion,it%20has%20never%20been%20repealed.&text=MADISON%2C%20Wis.

[7] https://www.wpr.org/hearing-arguments-dismiss-lawsuit-1849-abortion-ban-kaul

[8] https://captimes.com/opinion/guest-columns/opinion-abortion-is-the-defining-issue-in-supreme-court-race/article_ea30ce9e-b0e2-5bca-a388-5b6ea436ceb3.html

[9]

[10] https://www.nytimes.com/2023/04/05/us/politics/wisconsin-supreme-court-abortion-protasiewicz.html

[11] https://www.brennancenter.org/our-work/analysis-opinion/montana-supreme-court-expands-abortion-access

[12] https://www.cbs58.com/news/they-need-our-support-wisconsin-pregnancy-resource-center-sees-uptick-in-clients-following-abortion-ruling

[13] https://www.wpr.org/post-roe-wisconsin-nonprofit-pregnancy-centers-say-theyre-filling-need-and-want-expand-experts-say

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