Legal Arguments Begin This Week in the Challenge to Wisconsin’s 1849 Abortion Ban

By Pat Kreitlow
May 1, 2023

At Issue: Is a 174-year old law really in effect right now, or is Wisconsin actually governed by a 1985 law that protects abortion rights to around 24 weeks? Until the courts decide, women’s healthcare is in a dangerous and legally-murky area.

Should an extreme abortion ban written in 1849 that makes no exceptions for rape or incest be the law of the land in Wisconsin?

The Dane County Circuit Court will begin the process of answering that question this week when they hear legal arguments as part of Wisconsin Attorney General Josh Kaul’s lawsuit challenging the validity of the 1849 ban. 

Many expect the Wisconsin Supreme Court will eventually have the last word on the matter, but Kaul brought the suit against the three district attorneys in Dane, Milwaukee, and Sheboygan counties, where abortion services had been performed prior to the repeal of Roe v. Wade.

As part of his argument, Kaul has said that a 1985 Wisconsin law on the books that protects abortion rights until the point of fetal viability—medically determined to be around 24 weeks of pregnancy—should supersede the pre-Civil War era ban.

But for the past eleven months, since Roe was overturned, women and doctors have faced the prospect that a local prosecutor will charge them with a felony under the 1849 law and claim it’s the standard currently being enforced. As a result, abortion providers ceased all services in Wisconsin last year, citing the legal murkiness.

The question of which law should take precedence has enormous stakes–namely, the reproductive freedom of Wisconsin women and the ability of their doctors to provide services in the state.

“The old ban should be deemed to be unenforceable,” said Diane Welsh, an attorney for three physicians who are also part of Kaul’s lawsuit as intervenors. “Let’s believe that the more modern legislatures, some that actually included women, with laws that were passed in 1985 or the 1990s—that those are the abortion laws that should be enforced, not something from the 19th century [that] really uses arcane terms and is wholly unprotective of patients.”

Dr. Kristin Lyerly, an obstetrician-gynecologist is another one of the intervenors. As intervenors, they are not the original plaintiffs who filed the lawsuit, but are allowed to make arguments in court because they are directly impacted by the outcome.

“This is a hostile environment,” Lyerly said Monday on UpNorthNews Radio, “And we’re concerned about the potential for criminal charges, for literally just doing the right things for our patients.” 

The physicians are seeking a “due process” claim—a right to know the exact status of current law, so that doctors know whether they would face criminal charges for certain actions.

“There is confusion about what the law says and what the legal status would be,” Lyerly said. “Especially in places like Sheboygan, where the D.A. [district attorney] has specifically said that he will prosecute. That’s where I was practicing. So I personally feel very threatened because I don’t think that the D.A. truly understands how abortion care is intertwined with every part of women’s health care.”

“Would he prosecute someone who was being treated for an ectopic pregnancy, which is truly a life-threatening condition?” Lyerly asked. “It is the number one reason why women die in early pregnancy. I know what to do. I know how to save someone’s life. But if there’s cardiac activity with that pregnancy, would he consider that an abortion? These are common conditions managing miscarriages, helping people with fertility issues. So, yes, we feel threatened.”

The repeal of Roe v. Wade eliminated a national standard for women’s healthcare and turned the nation into a 50-state checkerboard of rights or restrictions. Speaking last week on UpNorthNews Radio, Sen. Tammy Baldwin (D-Wisconsin) said the experiences since the Dobbs ruling reinforce the reasons to pass her Women’s Health Protection Act, a bill that would restore abortion rights nationwide.

“It would put a stop to this patchwork quilt, where rights and freedoms vary dramatically from state to state to state,” Baldwin said. “Your zip code should not determine what rights you have as a citizen of the United States.”

The court on Thursday will first hear arguments on a motion from one of the district attorneys—Republican Joel Urmanski of Sheboygan County—to dismiss Kaul’s lawsuit. If Judge Diane Schlipper determines the lawsuit can proceed, the next step will involve each party’s arguments for or against the enforceability of the 1849 ban. Schlipper’s ruling could then be brought to a Court of Appeals and quite possibly to the state Supreme Court, which by then will have come under control of progressive justices following last month’s election of Milwaukee County Judge Janet Protasiewicz. 


  • Pat Kreitlow

    The Founding Editor of UpNorthNews, Pat was a familiar presence on radio and TV stations in western Wisconsin before serving in the state Legislature. After a brief stint living in the Caribbean, Pat and wife returned to Chippewa Falls to be closer to their growing group of grandchildren. He now serves as UNN's chief political correspondent and host of UpNorthNews Radio, airing weekday mornings 6 a.m.-8 a.m on the Civic Media radio network and the UpNorthNews Facebook page.

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