State Attorney General Race Could Decide Reproductive Freedom in Wisconsin

Whoever wins Wisconsin’s AG race—Democratic incumbent Josh Kaul or his opponent, Republican Eric Toney—could play a critical role in determining whether women in Wisconsin have their reproductive freedom restored.

In just over two months, millions of Wisconsinites will cast their ballots in key races that will determine the future of the state and the country. While the marquee races for US Senate and governor have drawn the most attention, another key statewide race also stands to have an enormous impact on Wisconsin’s future: the campaign for Attorney General (AG).

The Wisconsin AG is the state’s top law enforcement official and has real power over the direction of the state when it comes to key issues like reproductive freedom and the ability of women and families to make their own healthcare and family planning decisions.

While the AG can’t sign or pass laws, they do hold a tremendous amount of influence over how and when to enforce them—and when to challenge them. Whoever wins Wisconsin’s AG’s race—Democratic incumbent Josh Kaul or his opponent, Republican Eric Toney—could play a critical role in determining whether women in Wisconsin have their reproductive freedom restored.

State Attorneys General Have Real Power Over Reproductive Freedom

It was the Mississippi’s state attorney general’s office that argued the case that led the US Supreme Court to overturn Roe v. Wade, stripping millions of Wisconsin women of their reproductive freedom. 

Now, it’s the Wisconsin attorney general, Kaul, who has filed a lawsuit to overturn Wisconsin’s 1849 abortion ban, which is currently in place and makes no exceptions for rape or incest. Under the extreme law, doctors who perform abortions can be charged with felonies and face up to six years in prison and $10,000 in fines.

“The Supreme Court’s decision has made Wisconsin’s women less safe, less equal, and less free. And we need to change that,” Kaul said in June. “This ban on abortions is deeply anti-family.”

Kaul is asking the Dane County Circuit Court to strike down the 1849 law and instead rule that a 1985 state law that bans abortions after a vetus becomes viable outside the womb—usually around 24 weeks—supersedes the pre-Civil War era ban. 

Kaul’s lawsuit is expected to reach the state Supreme Court, where conservatives hold a 4-3 advantage. If Kaul succeeds, abortion would become legal again in Wisconsin—unless, of course, Republicans win the governor’s race in November and pass a new ban. If his lawsuit fails, however, Kaul has vowed to continue fighting, telling the Associated Press that he would consider filing additional lawsuits based on other legal theories. 

Kaul has also promised not to use state Justice Department resources to enforce the ban and vowed to lobby lawmakers to repeal the ban. 

Toney, however, opposes reproductive freedom and has pledged to enforce the 1849 abortion ban. 

“I am pro-life and I will enforce and defend the laws as passed by the legislature and signed into law,” Toney said in May.

Toney has also said he would provide more resources to district attorney’s offices if they were needed to enforce the law—in other words, to prosecute doctors.

“If they need guidance or support, we’re going to provide that,” he told the Milwaukee Journal Sentinel in May. “The attorney general is statutorily obligated to give that guidance to law enforcement and to prosecutors.”

The 1849 ban has not only put doctors in danger of prison time and forced women to travel out-of-state for abortions, but also has led to horror stories of pregnant women unable to get emergency medical care.

In Wisconsin, a woman bled for more than 10 days due to an incomplete miscarriage because emergency room staff would not remove the fetal tissue over concerns about violating the draconian abortion ban—the sort of situation Kaul was worried about when he filed his lawsuit in June.

“The GOP-controlled state legislature has chosen to force Wisconsinites to go through horrific circumstances like this,” Kaul wrote in a tweet about the woman’s ordeal. “We need to repeal Wisconsin’s mid-1800s criminal abortion ban and restore access to safe and legal abortion.”