Sheboygan County DA asks Wisconsin Supreme Court to decide abortion lawsuit

MADISON – The Sheboygan County district attorney is asking the liberal-controlled Wisconsin Supreme Court to review a lower court's ruling making abortions legal again in Wisconsin, setting the stage for the issue of abortion access to be decided by the state's highest court.

Sheboygan County District Attorney Joel Urmanski filed a petition Tuesday to bypass an appeals court and ask the state's highest court to decide whether a December ruling from a Dane County judge declaring a 19th Century law outlawing abortion does not apply to consensual procedures.

If the state Supreme Court agrees, it's likely the court will side with the lower court's ruling. The court now has a 4-3 liberal majority after Justice Janet Protasiewicz ran for a seat on the court with a campaign focused on restoring abortion access in Wisconsin.

Attorney General Josh 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.

The lawsuit was filed against lawmakers and later the district attorneys in counties where abortion was provided, which includes Sheboygan County.

In Tuesday's filing, attorneys for Urmanski, a defendant, said the status of the state's abortion law "has generated significant public interest and is a question this Court is likely to consider regardless of how the Court of Appeals decides the issues."

"This is a question of significant public importance requiring prompt resolution by this Court," the attorneys wrote. "This Court’s resolution of this issue now, rather than later, will provide needed clarity to policymakers as to the current state of the law and will save taxpayer dollars by preventing" additional court costs.

Urmanski's attorneys said in the filing that he does not have a position on whether abortion should be legal but does believe the 1849 law applies to all abortions.

"That is an issue for the Legislature and the Governor. This case is not about to whatextent abortion should be regulated as a matter of public policy. Urmanski does havean opinion on what the law currently is, however," they wrote.

In December, Dane County Circuit Judge Diane Schlipper ruled that an 1849 law that had been interpreted as banning abortion actually applies to feticide instead.

The 1849 law, which was interpreted until Schlipper's ruling to ban all abortions except when the mother would die without one, was put back into effect when the U.S. Supreme Court overturned Roe v. Wade in June 2022, allowing states to set their own abortion policies. That move pushed Attorney General Josh Kaul and Gov. Tony Evers, both Democrats, to file a lawsuit to overturn the law altogether.

Whether the 1849 law is enforceable is at issue in the lawsuit. Republican lawmakers, abortion opponents and conservative legal experts say the law was in effect. But nonpartisan attorneys for the state Legislature, Democratic lawmakers, and supporters of abortion access said potential and expected legal challenges muddied the answer to the question.

Practically, abortions were not available in Wisconsin after the ruling given the legal uncertainty and the state ban in statute. In September, Planned Parenthood of Wisconsin resumed providing abortions at its Madison and Milwaukee clinics after Schlipper issued an order signaling her decision. The debate over abortion access in Wisconsin has become central to political campaigns since then, including the 2022 governor's race and the spring race for state Supreme Court.

Schlipper's ruling declared that the law in question does not apply to abortions but to feticide.

A consensual abortion is sought out by a pregnant woman who voluntarily determines to end a pregnancy. Schlipper's ruling is based on a 1994 state Supreme Court decision that determined feticide is a nonconsensual act in which somebody batters a woman to the point she loses the pregnancy.

With the 1849 statute no longer in effect, Wisconsin returned to its previous abortion laws, which ban abortion after 20 weeks of pregnancy. Women are also required to undergo an ultrasound before an abortion, along with a counseling appointment and a 24-hour waiting period.

In the case of medication abortions, the doctor who administers the pills must be the same one the woman saw for her counseling appointment, and the pills cannot be taken remotely via telemedicine.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court asked to take challenge to abortion law