Wisconsin Attorney General Josh Kaul (AP Photo/Morry Gash)
Wisconsin Attorney General Josh Kaul (AP Photo/Morry Gash)

The governor and state attorney general argue the ban is too old and is also superseded by a 1985 law that would still permit abortion prior to viability.

Wisconsin’s Democratic attorney general filed a lawsuit Tuesday challenging the state’s 173-year-old abortion ban, arguing that statutes passed in the 1980s supersede the ban and it’s so old no one can say it passed with the consent of modern generations.

Wisconsin passed a law in 1849, the year after the territory became a state, banning abortions in every instance except to save the mother’s life. The U.S. Supreme Court’s landmark 1973 Roe vs. Wade ruling, which essentially legalized abortion nationwide, nullified the ban.

The court’s decision on Friday to reverse Roe vs. Wade has created questions about whether the ban is back in effect. Anti-abortion advocates insist it is. Abortion providers in the state stopped offering procedures on Friday.

Attorney General Josh Kaul had hinted before the Supreme Court’s decision reversing Roe vs. Wade that he would challenge the ban’s validity. He followed through on Tuesday, filing an action in Dane County Circuit Court.

According to the lawsuit, Wisconsin adopted a post-Roe vs. Wade law in 1985 that prohibits abortions after a fetus reaches the point of being able to survive outside the womb. That point is the subject of debate. Some physicians say it’s around 20 weeks, others around 28 weeks.

Regardless, Kaul argues that the 1985 law superseded the ban and therefore abortions before the point of viability remain legal in Wisconsin.

“Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity,” the lawsuit said.

Kaul goes on to contend that the ban should be declared unenforceable because it has become obsolete, saying a law that was enacted so long ago “cannot be said to have the consent of the governed.”

“This Court therefore should declare that (the ban) cannot be enforced as applied to abortions until and unless new legislation is enacted into law,” the lawsuit says.

Republican lawmakers have said they may update the ban when they return to Madison for the next two-year legislative session in January. Democratic Gov. Tony Evers would veto any of their attempts if he wins reelection in November, however.

The lawsuit names Senate President Chris Kapenga, Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos as defendants. They didn’t immediately respond to messages.

Meanwhile, three Republican gubernatorial hopefuls warned they would fire prosecutors who refuse to enforce the ban.

Former Lt. Gov. Rebecca Kleefisch, management consultant Kevin Nicholson and state Rep. Timothy Ramthun all said during a debate on Monday that they would remove district attorneys who won’t enforce the ban. Former President Donald Trump’s endorsed candidate, Tim Michels, didn’t attend the debate.

Dane County District Attorney Ismael Ozanne has said he won’t enforce the ban. Milwaukee County District Attorney John Chisholm has hinted he won’t enforce it, either. Ozanne and Chisholm are Democrats.

District attorneys are elected officials but state law allows the governor to remove them from office for cause.