Wisconsin Abortion Ban Challenged In Lawsuit From Kaul, Evers

WISCONSIN — Democratic Gov. Tony Evers and Attorney General Josh Kaul announced a lawsuit Tuesday that challenges Wisconsin's 1849 criminal abortion ban.

The law conflicts with other laws, and "the Wisconsin people deserve clarity," the lawsuit said.

The lawsuit was filed in Dane County Circuit Court on Tuesday and seeks declaratory judgment. The suit asks the court to clarify that the pre-Roe abortion law was effectively repealed by later legislation.

The lawsuit came just days after the U.S. Supreme Court overturned Roe v. Wade, effectively ending decades of national constitutional protections on a woman's ability to have an abortion.

The criminal abortion ban originated in 1849, a news release from the governor's office said. It would ban nearly all abortions in Wisconsin, including in cases of rape and incest, the governor's office said. The 1800s law could hold people who provide abortions such as physicians criminally accountable, but not the mother.

The suit argued that Wisconsin statutes contain criminal laws that directly conflict when applied to abortion. Because of that, the lawsuit claimed that the 1849 law is superseded by more recent legislation and cannot be enforced, according to the news release from the governor's office.

The Supreme Court's recent decision on Roe generated backlash from some Wisconsin politicians and praise from others.

Evers called the ruling "unconscionable" in a news release, while U.S. Sen. Ron Johnson, a Republican, called it "a victory for life and those who have fought for decades to protect the unborn."

In the announcement of the lawsuit, Evers on Tuesday said, "We will never stop fighting to ensure every Wisconsinite has the right to consult their family, their faith, and their doctor and make the reproductive healthcare decision that is right for them."

"A decision," Evers added, "that should be made without interference from politicians or members of the Supreme Court who don’t know anything about their life circumstances, values, or responsibilities."

The suit named the President of the Wisconsin State Senate and Co-Chair of the Joint Committee on Legislative Organization Chris Kapenga, Majority Leader of the Wisconsin Senate Devin LeMahieu and Speaker of the Wisconsin State Assembly and Co-Chair of the Joint Committee on Legislative Organization Robin Vos.

In response to the lawsuit against him, Vos, a Republican, said, "We will do Attorney General Kaul's job and vigorously defend the law. It's sad that Evers and Kaul want to break the law instead of work with the legislature."

“Abortion isn’t health care," Vos added. "And for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v Wade decision over 50 years ago. I’m confident our courts will see through their tactics and uphold the law."

Patch reached out to all three defendants for comment.

SEE ALSO: Roe V. Wade Overturned: What It Means In Wisconsin

The lawsuit asserted that there are conflicts between several laws regulating a physician's ability to provide a legal abortion. Specifically, laws on waiting periods, ultrasounds, how abortion drugs are administered and other provisions "are incompatible with the pre-Roe statute that broadly criminalizes abortion," said the governor's news release.

The lawsuit reads in part:

"Wisconsin Stat. § 940.04 states a very broad ban, without exceptions that are now widely accepted as appropriate and necessary. It provides that it is a criminal felony to destroy the life of an unborn child at any point after conception unless necessary to save the pregnant woman’s life. Nationally, these broad bans were rarely, and disparately, enforced historically and not enforced at all after the Supreme Court’s decision in Roe v. Wade. Subsequently, the Wisconsin Legislature enacted different criminal laws applicable to abortion after the point of viability and with broader exceptions for the pregnant woman’s health. In addition, the Legislature passed various other laws with specific parameters under which physicians may lawfully provide abortions after conception.

"The pre-Roe and post-Roe Wisconsin laws thus directly conflict if both were applied to abortion. Either it is lawful to provide a pre-viability abortion, or it is not. Either it is lawful to provide an abortion to preserve the mother’s health, or it is not. These are exactly the circumstances where courts hold that the older law may not be enforced—particularly when that law imposes criminal sanctions.

"Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity. This Court should hold that Wis. Stat. § 940.04 has been superseded and cannot be enforced as applied to abortions."

Read the full lawsuit released online.