Attorney General Josh Kaul argued against a motion to dismiss his challenge to the state’s century-old abortion law on Thursday.
Kaul is suing the district attorneys in Sheboygan, Dane, and Milwaukee counties – the only places where abortions in the state used to be performed – to block the enforcement of Wisconsin’s 1849 law that bans abortions in every case except to save a mother’s life.
“We’ve raised a few different legal arguments. Including the Black decision. That the logic of that opinion indicates the 1849 statute is not enforceable in cases involving consensual abortion,” Kaul said after appearing in court. “We’ve also argued that laws that were passed subsequent to Roe v. Wade fundamentally conflict with the 1849 ban. Both individual laws conflict, and the category of laws that regulate lawful abortion conflict with that statute.”
In the Black decision, the Wisconsin Supreme Court wrote that Wisconsin’s law against killing an unborn baby “by its own terms it cannot apply to a mother.” But the opinion also said the use of Wisconsin’s abortion law to doctors who perform abortions “would be unconstitutional under Roe v. Wade.”
The U.S. Supreme Court overturned Roe last year, and Wisconsin immediately reverted back to the 1849 law.
The district attorneys who are being sued are challenging whether Kaul has the legal standing to sue since he is neither a doctor nor a mother who has been denied an abortion.
The judge in the case did not issue a ruling on the motion to dismiss.
Many in Wisconsin expect the 1849 law to eventually end up before the to-be liberal-majority Wisconsin Supreme Court.
Kaul, on Thursday, said that is likely. But it will also be a long time from now.
“The unfortunate reality, and I’ve said this since we filed the case, is that the legal process takes a while to play out,” Kaul said. “We filed this case almost a year ago now, and there are still going to be several steps in this case as it moves forward.”
