WI Attorney General Josh Kaul Asks Judge to Formally Rule an 1849 Law Is Not About Abortion

The new motion says no further oral arguments are needed for the court to make a final judgment that the 19th century law is about feticide and does not criminalize abortion.

Days into the tenure of a state Supreme Court now under liberal control, Wisconsin Attorney General Josh Kaul filed a motion on Monday asking a Dane County court to rule that an 1849 state law does not in fact ban abortion in Wisconsin..

“Women should not be denied the freedom to make fundamental reproductive health-care decisions,” said Kaul in a statement. “Our filing today marks another important step in our fight to protect the freedom and safety of women in Wisconsin.”

Kaul believes Judge Diane Schlipper will reiterate her ruling from last month that “there is no such thing as an 1849 abortion ban in Wisconsin” because the 19th century statute applies to the illegal killing of fetuses by assaulting or battering the mother and not  abortions.

Schlipper’s ruling—that a district attorney would have no authority to bring criminal charges under the 1849 statute—applied only to a motion filed by Sheboygan County District Attorney Joel Urmanski seeking to dismiss the lawsuit filed last year by Kaul, three physicians, and others seeking a clear legal answer on the status of the 1849 statute versus more recent laws. 

Schlipper denied Urmanski’s motion to dismiss and said the state’s “Abortion Prevention and Family Responsibility Act of 1985” allows pre-viability abortions and post-viability abortions “if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.” 

Viability refers to the point at which a fetus can survive outside the womb and is generally considered to be around 23 or 24 weeks.

Kaul is now asking  Schlipper to rule on the full lawsuit without any further oral arguments, once an expedited briefing is completed.

Whenever Schlipper issues a final judgment, an appeals process will almost certainly take the case to the Wisconsin Supreme Court, which had been controlled by conservative justices for more than 15 years until last week’s swearing-in of Justice Janet Protasiewicz, giving liberals a 4-3 majority.

Protasiewicz repeatedly stated during her campaign this spring that she personally believed abortion should be legal, though she stopped short of saying how she would rule on the specifics of any given case that came before the court.