Doctors seek to join legal battle over state's 1849 abortion ban
Jessica Van EgerenThree physicians are seeking to intervene in a lawsuit filed this summer by Attorney General Josh Kaul and Gov. Tony Evers that challenges the legal standing of Wisconsin's 173-year-old abortion ban.
Pines Bach, a Madison-based law firm, filed a motion Thursday on behalf of the physicians, all of whom routinely treat pregnant patients.
"The threat of enforcement of Wisconsin's 1849 criminal abortion ban prevents me from providing comprehensive, evidence-based care for my patients," Dr. Kristin Lyerly told the Milwaukee Journal Sentinel on Friday. "Abortion care is part of the spectrum of obstetrical care ranging from infertility treatment for some, to miscarriage management for others, to navigating complicated pregnancies."
Lyerly is one of the three doctors seeking to be named as a plaintiff. The others are Dr. Jennifer Jury Mcintosh, a Milwaukee County-based maternal fetal medicine physician who cares for high-risk pregnancy patients, and Dr. Christopher Ford, an emergency department physician who practices in Milwaukee County.
Lyerly said her role as a physician is to ensure that her patients and their families have the information they need to make their own decisions within the context of their own lives.
"As a board-certified, experienced physician, I can't practice in an environment where I risk going to jail for ensuring that my patients receive the safe, compassionate care that they deserve," she said.
This weekend, she is delivering babies at a clinic in Minnesota, a state where she can practice without fear of prosecution, should she need to perform an abortion, she said.
"I probably won’t have to perform an abortion but you never know when someone with a complicated situation will walk in," she said. "We have to be prepared for everything."
Before the U.S. Supreme Court's decision on Dobbs v. Jackson Women's Health Organization was issued in June, abortions were legal in Wisconsin up to 20 weeks past conception.
The presence of abortion laws passed post-Roe and the existence of the 1849 ban have created a gray area for the legal and medical community, said Diane Welsh, an attorney with Pines Bach. Under the 1849 ban, doctors can be charged with a felony for performing an abortion, except to save the life of the mother. Given the statute of limitations for committing a felony is six years in Wisconsin, doctors say they need state law codified on this topic.
"We don’t know if it's enforceable," Welsh said. "That leaves a predicament for health care providers who don’t want to be hauled off to jail to await a criminal trial, while lawyers or judges or legislators figure out what the law is or what it means."
For that reason, the state's four abortion clinics immediately stopped performing abortions following the Supreme Court's ruling. In late September, the number of those clinics officially dropped to three. Dr. Dennis Christensen, CEO of Affiliated Medical Services and a retired OB-GYN, put the building that housed the Milwaukee-based abortion clinic up for sale.
"From a practical standpoint, it has had a chilling effect," Welsh said. "Most providers in the state that I’m aware of are choosing to operate as if there could be criminal enforcement — even if they don’t believe it should be enforced."
Julaine Appling, executive director of Wisconsin Family Council, finds no legal ambiguity in state law.
"Fundamentally, we don't believe the lawsuit should have been filed," Appling told the Journal Sentinel. "There has been nothing done subsequent to the ruling of Roe v. Wade back in 1973 that in any way makes the 1849 law null and void. We believe it was passed by a duly elected legislature and signed into law by a duly elected governor. And as a result of that, we think Governor Evers and Attorney General Kaul took the wrong action. Their jobs should be to uphold Wisconsin legislation."
This election season, Republican candidates up and down the ballot are in favor of the state's 1849 ban, some saying that would allow for abortion in cases of rape and incest, while Democratic candidates favor greater access to reproductive health care, including abortion.
Wisconsin's abortion law oldest in the country
Two other states, Arizona and Michigan, had their pre-Roe bans blocked by the courts. Arizona’s ban dated back to 1864 and Michigan passed its abortion law nearly a century after Wisconsin, in 1931.
With its pre-Roe ban blocked, Arizona again allows abortions up to 15 weeks. A Michigan court has ruled its abortion law from 1931 will not be enforced while a case challenging it makes its way through the courts.
“Wisconsin is the only state with a pre-Roe abortion ban that is in play right now,” said Elizabeth Nash, the principal policy associate with the Washington, D.C.-based think tank the Guttmacher Institute. The institute's mission is to advance sexual and reproductive health and rights.
Other states passed so-called trigger laws that were designed to outlaw most abortions if the high court threw out the constitutional right to end a pregnancy. That never happened in Wisconsin.
“I’ve been doing this work for 25 years. And during those 25 years, there have been numerous attempts by people who are pro-abortion to rescind the 1849 ban. It never happened,” Appling said. “We didn’t need a trigger law. We had a law on the books.”
Nash said people need to be able to access care and now everyone is in a limbo situation where, by default, they have to behave as if the pre-Roe ban is in effect.
"In Wisconsin, there is no guidance coming from the legal system, which is very worrisome," Nash said. "It is really unusual for courts not to say anything."
Welsh said that while Kaul filed the lawsuit within days of the Dobbs decision, other factors have slowed down the case, which is pending in Dane County Circuit Court.
The case, when first filed, named three of the state's top Republican lawmakers as defendants. In mid-September, the lawmakers sought to dismiss the case, saying they were not the correct defendants, as it is not within their job purview to uphold the law. Kaul subsequently replaced the lawmakers, instead making district attorneys from Dane, Sheboygan and Milwaukee counties the defendants.
The defendants have until Nov. 18 to comment on the motion to add the three physicians to the case.
“I think Wisconsin is among the most restrictive states in the country," Nash said. "When you can not access care, that means you are in the same boat as Louisiana, Mississippi and Texas."