Wisconsin judge says 173-year-old’s “abortion ban” doesn’t apply to abortions

MADISON, Wisconsin (AP) – Wisconsin’s 173-year abortion ban prohibits fetal killing but does not apply to consensual medical abortions. A judge ruled on Friday that a lawsuit against the ban in the ever-contested state may continue to apply.

Dane County District Judge Diane Schlipper said the legal language of the ban doesn’t use the term “abortion,” so the law only bans assaulting a woman to kill her unborn child.

“There is no such thing as an 1849 abortion ban in Wisconsin,” the judge wrote.

Wisconsin legislatures enacted legislation in 1849 that to this day has been widely interpreted to prohibit abortion in all circumstances except to save the mother’s life. The landmark 1973 U.S. Supreme Court ruling in Roe v. Wade legalizing abortion overturned the ban, but lawmakers never overturned it. Then the statutes were reactivated by the Supreme Court’s decision last June overturning Roe vs. Wade.

Republicans and their conservative allies across the country praised the reversal, but the decision gave Democratic voters a boost. Wisconsin Gov. Tony Evers turned his anger at the verdict into a re-election victory in November. The issue is coming to the fore again in the state as the 2024 presidential campaign gets underway.

Democratic state attorney general Josh Kaul has vowed to restore access to abortion. He handed a few days after the repeal of Roe v. Wade is filing a lawsuit in Dane County to get the ban overturned.

Kaul argues that the ban is too old to enforce and that a 1985 law allowing abortions before a fetus can survive outside the womb supersedes the ban. Three doctors later joined the lawsuit as plaintiffs, saying they fear prosecution for performing abortions.

Kaul named district attorneys in the three counties where abortion clinics operated until the Supreme Court Roe v. Wade as a defendant. One of them, Sheboygan County Republican District Attorney Joel Urmanski, filed a motion to dismiss the case in December.

Urmanski said it was an overstatement to argue that the ban was so old that it could no longer be enforced and that the 1985 law and the ban were complementary. Because the newer law will ban abortion after it’s enacted, prosecutors have only one more option to indict, he claims.

Kaul’s attorneys have countered that the two laws conflict and doctors need to know where they stand.

Schlipper, in a written judgment denying Urmanski’s motion to be fired, stated that she interpreted the 1849 Act as prohibiting people from killing fetuses by assaulting or abusing the mother. The law does not apply to consensual medical abortions because the word “abortion” is not used. Therefore, a doctor who performs an abortion is only punishable if the fetus is viable under the 1985 law, she wrote.

That means the plaintiff doctors could ultimately win an explanation that they could not be prosecuted for performing abortions and the case must therefore go ahead, Schlipper wrote.

Andrew Phillips and Jacob Curtis, two of Urmanski’s attorneys, did not immediately respond to emails seeking comment on the decision. Heather Weininger, executive director of Wisconsin Right to Life, an anti-abortion group, called the ruling “a devastating setback in our ongoing fight to protect Wisconsin’s premature babies.”

The verdict means the trial will continue in the Schlipper courtroom. Regardless of what the judge ultimately decides, the case carries so much weight in the state’s future that it will almost certainly make it to the state Supreme Court, and that’s exactly what Democrats want.

Liberal judges will control the court by a 4-3 majority after progressive Janet Protasiewicz was sworn in on August 1. She paused in the campaign short of saying how she would rule on a challenge to the 1849 ban, but has repeatedly said she supports abortion rights.

Evers tweeted Friday that Schlipper’s decision to continue the case was “good news and a critical step” in restoring reproductive rights.

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