Oral arguments heard in lawsuit against Wisconsin abortion ban

Judge says 1849 law may not apply to consensual abortions

By: - May 4, 2023 3:39 pm

Dane County Judge Diane Schlipper heard oral arguments in the lawsuit against Wisconsin’s abortion ban on May 4, 2023. (Screenshot | WisEye)

Nearly a year after Wisconsin’s 19th century ban against nearly all abortions went back into effect last summer, oral arguments in the lawsuit seeking to strike it down were heard Thursday in Dane County Circuit Court. 

Since the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health last year, which struck down the constitutional right to abortion that had been protected by the nearly 50-year-old Roe v. Wade decision, doctors in Wisconsin have been in limbo — unsure how to proceed under a legal framework in which the law is interpreted as making it a crime to provide an abortion with some narrow exceptions to save the life of the mother. 

The lawsuit challenging the 1849 law was brought by Democratic Attorney General Josh Kaul’s Department of Justice against three district attorneys, Sheboygan County DA Joel Urmanski, Dane County DA Ismael Ozanne and Milwaukee County DA John Chisholm. Kaul is joined in the case against the ban by three physicians licensed in the state. 

An attorney for the physicians, Leslie Freehill, laid out the stakes of the case for women and doctors in Wisconsin during the arguments. 

“The alternative that Urmanski has presented is ‘just don’t provide abortions and then you avoid this whole gray area and all of these concerns about what the law is or isn’t,’” Freehill said. “I want to make very clear that my clients are practicing physicians. They don’t provide elective abortions, that’s not what we’re talking about. They’re providing care for women in high risk scenarios. They’re providing care for women who walk into the emergency room door and these physicians need to know, not just these three physicians but every physician across the state in every county. They need to know what they can do because they make these decisions not within days or not within hours or within minutes, but within seconds. They have to know what the law allows them to do.” 

During the oral arguments, Dane County Circuit Court Judge Diane Schlipper suggested that the 1849 law may not even apply at all to abortion, saying instead that a 1994 state Supreme Court case held that the law applies to feticide, not consensual abortions. 

“Does a circuit court have the authority to overrule, modify or redraw language from a binding Supreme Court decision?” Schlipper said. “The Supreme Court has said this almost exact language proscribed feticide. It is not about abortion.”

Mark Thome, an attorney for Urmanski, said that the 1994 decision doesn’t dictate how Schlipper should rule in the case. 

The parties were in court on Thursday to take up Urmanski’s motion for the case to be dismissed, with Thome arguing that the dispute amounted to a difference of opinion, not a controversy worthy of being decided in court. 

“This sort of extraordinary conflict in criminal law is the very scenario where it is not only proper but makes complete sense that the attorney general would seek to obtain clarity for the state in court,” Assistant Attorney General Hannah Jurss said.

The DOJ’s argument against the validity of the abortion ban is that the Legislature has passed a number of abortion-related laws in the 173 years since the ban was enacted that define who can perform an abortion, who can receive an abortion, and under what circumstances abortion is legal.. The argument is that all of these subsequent provisions — many of which were passed while Roe v. Wade made the ban unenforceable — imply that the ban is invalid and out of date. 

“A later statute has impliedly repealed an earlier one when the two directly conflict, when they irreconcilably conflict,” Jurss said, referencing the statutes that include the abortion ban and a later law which restricts abortions after a fetus reaches “viability.”  

“Both speak to when it is and is not a crime in Wisconsin to provide an abortion, both as to the stage of the pregnancy, and the pregnant woman’s condition, and they say directly contradictory things on both counts,” Jurss continued. “It is impossible for physicians to comply with providing abortions not necessary to save the life of the pregnant woman under 940.15 without violating 940.04.” 

Thome argued that such conflict happens all the time when two criminal statutes are related but distinct, pointing to cases when it is up to the prosecutor to decide whether to charge a person with a misdemeanor or felony when the statutes say it could be either. 

Jurss argued that in the case of Wisconsin’s conflicting abortion statutes,  the difference is not between charging decisions, but the law fundamentally saying different things about what is legal. 

“Just to illustrate the conflict between these laws, let’s imagine Wisconsin has two hypothetical criminal laws,” she said. “The first says it is illegal for pedestrians to cross the street unless the walk sign is illuminated. The second says it is illegal for pedestrians to cross the street under any circumstances unless necessary to save the life of another pedestrian. Those two laws cannot both be the law of Wisconsin at the same time. They can’t be because one tells us circumstances when it is lawful for pedestrians to cross the street, i.e. when the walk sign is illuminated and the other makes those same factual circumstances a crime.” 

Schlipper said she understands the need for efficiency in making a rule in the high-profile case. No matter how she rules, however, the case will almost surely be appealed to the Wisconsin Supreme Court, which will have a new liberal majority in August when Justice-elect Janet Protasiewicz is sworn in.


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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.