Sheboygan DA appeals ruling that made abortion legal, pushing issue closer to Supreme Court
MADISON — Sheboygan County District Attorney Joel Urmanski will appeal a Dane County judge'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.
Urmanski filed a notice of appeal Tuesday, asking the Waukesha-based 2nd District Court of Appeals to hear the case. In a statement shared with reporters Wednesday afternoon, Urmanski said he intends to ask the state Supreme Court to take the appeal directly, bypassing the appellate level.
"I believe a prompt and definitive resolution of this case would be in the best interests of all Wisconsinites," Urmanski said, adding that he has not shared his personal opinion on what the law should be.
"But, as I have repeatedly stated, it is my view that, properly interpreted, the statute at issue prohibits performing abortions (including consensual abortions) unless the exception for abortions necessary to save the life of the mother applies," he said. "My position in this case is guided by my understanding of the law, not my own personal values or preferences."
Earlier this month, 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 Genereal 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.
Earlier this week, Planned Parenthood announced that it will also soon resume providing medication abortions at its Sheboygan clinic.
Schlipper's ruling, issued Dec. 5, 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 pre-Dobbs abortion laws, under which abortion is banned after 20 weeks of pregnancy.
Under the state's pre-Dobbs laws, 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.
It's likely that the appeals court's ruling will in turn be appealed to the state Supreme Court, which now has a 4-3 liberal majority. Justice Janet Protasiewicz was sworn in Aug. 1 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: Ruling making abortion legal in Wisconsin appealed by Sheboygan DA
