Arguments begin in nationally watched lawsuit seeking to overturn Wisconsin's 1849 abortion ban

MADISON - A year after Americans learned the U.S. Supreme Court would be overturning its ruling legalizing abortion, arguments began in a Wisconsin courtroom in a lawsuit seeking to invalidate a 19th Century-era state law at the center of state politics that bans the practice in nearly every situation.

Dane County Circuit Judge Diane Schlipper said Thursday she would soon issue a ruling on a motion to dismiss the case that was put forward by the three district attorneys Democratic Attorney General Josh Kaul sued in an effort to invalidate the 1849 law.

Schlipper on Thursday listened to about 90 minutes of arguments for and against the motion, with attorneys representing Kaul and three doctors who joined the case arguing the lawsuit should continue in order to clarify for doctors and abortion providers which set of abortion statutes to follow.

Assistant Attorney General Hannah Schieber Jurss argued that an abortion-related law passed after Roe v. Wade to comply with the U.S. Supreme Court ruling effectively repealed the original abortion ban and that the lawsuit seeks to clarify the rules. The 1985 law allows doctors to perform abortions to preserve the health of the mother while the 1849 law bans the practice unless the mother would die without one.

Attorney Leslie Freehill, who represents three doctors, said her clients need certainty in order to provide life-saving medical care in situations involving serious pregnancy complications.

"They're providing care for women who walk into the emergency room door ... they need to know what they can do because they make these decisions not within days, or not within hours, or within minutes but in seconds they need to know what the law allows them to do," Freehill said.

Matthew Thome, an attorney representing defendant Sheboygan District Attorney Joel Urmanski, argued Kaul was asking a judge to perform the duties of lawmakers and was ignoring the fact that lawmakers have put forward language to repeal the original abortion law and decided against passing it.

"We're here today because ultimately the plaintiffs and the intervenors are asking the judiciary to do something that our policymaking branches not only haven't done but they've expressly decided not to do."

Schlipper did not say Thursday when her ruling on the motion might be released.

The overturning of Roe v. Wade triggered lawsuit

Kaul and Gov. Tony Evers, both Democrats, filed the lawsuit soon after the U.S. Supreme Court in June 2022 overturned their 1973 decision known as Roe v. Wade that legalized abortion nationwide — a ruling that effectively put back into place the state's original abortion law.

Passed more than a century before the Roe ruling, Wisconsin's abortion law bans doctors from performing abortions in every case except when the mother will die without the procedure. Doctors face up to six years in prison on felony charges and $10,000 in fines if they violate the law.

Kaul argues in the lawsuit that the 1849 law has been invalidated by abortion laws passed since the Roe v. Wade decision. Anti-abortion proponents and attorneys for Republican lawmakers disagree, arguing the original law still stands. The disagreement will be resolved by Schlipper or more likely, under appeal, the state Supreme Court.

The issue was front-and-center in April's state Supreme Court election. The court is controlled by conservatives until this summer when Milwaukee County Judge Janet Protasiewicz replaces retiring conservative Justice Patience Roggensack. Protasiewicz all but promised voters during her campaign this year that she would side with Kaul.

If a judge or justices side with Kaul and rule that the 1849 abortion law was invalidated by subsequently passed abortion regulations, the Department of Justice argues the state's 20-week abortion ban will go back into effect.

Republican lawmakers in Wisconsin passed legislation in recent years under former Gov. Scott Walker that banned abortions after five months of pregnancy and required women to receive an ultrasound before undergoing the procedure.

Between 1996 and 2022, women in Wisconsin seeking abortions also were required to participate in counseling and wait 24 hours before undergoing the procedure. 

Kaul and Evers filed the legal challenge in June 2022, asking state courts to clarify whether the 173-year-old ban is still in place. 

The lawsuit was filed in Dane County Circuit Court, initially against Republican legislative leaders, and argues the longstanding ban that had been unenforceable since 1973 under Roe v. Wade is still unenforceable because it conflicts with abortion measures state lawmakers have passed since. 

Kaul said measures passed by Republican lawmakers setting restrictions on abortions under Roe v. Wade repealed the original abortion law. 

But following the U.S. Supreme Court has overturned Roe v. Wade, opponents of abortion and conservative legal experts said the state law passed in 1849 banning abortions was in effect.

Molly Beck can be reached at molly.beck@jrn.com.