Wisconsin Judge Refuses to Toss Out Lawsuit Challenging State's Abortion Ban

Monday, July 10th, 2023 -- 2:00 PM

(By WPR Staff and The Associated Press) A judge refused Friday to toss out a lawsuit challenging Wisconsin's 174-year-old abortion ban, keeping the case inching toward the state Supreme Court in a state where debate over abortion rights has taken center stage.

Wisconsin lawmakers enacted statutes outlawing abortion in all cases except to save the mother's life in 1849, a year after Wisconsin became a state. The U.S. Supreme Court's landmark 1973 Roe v. Wade ruling legalizing abortion had nullified the ban, but legislators never repealed it.

Then, the high court's decision last June to overturn Roe v. Wade reactivated the statutes. The state's Democratic attorney general, Josh Kaul, has vowed to restore abortion access. He filed a lawsuit in Dane County days after Roe v. Wade was overturned, seeking to repeal the ban.

Kaul argues the ban is too old to enforce and that a 1985 law that permits abortions before a fetus can survive outside the womb supersedes the ban. Three doctors later joined the lawsuit as plaintiffs, saying they fear being prosecuted for performing abortions.

Kaul has named district attorneys in the three counties where abortion clinics operated until the Supreme Court overturned Roe v. Wade as defendants. One of them, Sheboygan County's Republican district attorney, Joel Urmanski, filed a motion seeking to dismiss the case in December.

Urmanski maintains that it's a stretch to argue the ban is so old it can no longer be enforced and that the 1985 law and the ban complement each other. Since the newer law outlaws abortions post-viability, it simply gives prosecutors another charging option, he contends.

Kaul's attorneys have countered that the two laws are in conflict and doctors need to know where they stand.

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