Attorney General Josh Kaul seeks to speed abortion ban court challenge

MADISON — Attorney General Josh Kaul on Monday filed a motion seeking to expedite a decision in his challenge against Wisconsin's abortion ban — a move that comes less than a week after liberals gained control of the state Supreme Court.

The case, which is currently before Dane County Circuit Judge Diane Schlipper, is expected to make its way to the state's high court.

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

Kaul's latest motion asks Schlipper to declare, without further oral arguments, that the 19th Century-era law is unenforceable as applied to abortion.

Schlipper already signaled that such an outcome is likely in her denial last month of a motion to dismiss the lawsuit from defendant Sheboygan District Attorney Joel Urmanski. Schlipper indicated she believes the statute, written in 1849, does not apply to consensual abortions but instead applies to feticide.

"There is no such thing as an '1849 Abortion Ban' in Wisconsin. A physician who performs a consensual medical abortion commits a crime only 'after the fetus or unborn child reaches viability …'" she wrote, explicitly adding the law does not prohibit consensual medical abortions.

Kaul and Gov. Tony Evers, both Democrats, filed the lawsuit shortly after the U.S. Supreme Court in June 2022 overturned its 1973 Roe v. Wade decision, which legalized abortion nationwide. The court's 2022 ruling in Dobbs v. Jackson Women's Health Care effectively put back into place the state's original abortion law.

Passed more than a century before the Roe ruling, Wisconsin's abortion law bans doctors from performing abortions in every case except when the mother will die without the procedure. Doctors face up to six years in prison on felony charges and $10,000 in fines if they violate the law.

Kaul argues in the lawsuit that the 1849 law has been invalidated by abortion laws passed since the Roe v. Wade decision. Anti-abortion proponents and attorneys for Republican lawmakers disagree, arguing the original law still stands.

If Kaul is successful, the Department of Justice argues the state's 20-week abortion ban will go back into effect.

A ruling from Schlipper would be a final and binding decision, subject to appeal.

The state Supreme Court now has a 4-3 liberal majority. Justice Janet Protasiewicz was sworn in last week after running a campaign that focused heavily on broadcasting her personal values to voters, including support for abortion access.

This article originally appeared on Milwaukee Journal Sentinel: Atty. Gen. Kaul moves to speed up abortion ban court challenge