Wisconsin judge allows challenge to abortion law
Wisconsin abortion rights advocates won an incremental but significant legal victory Friday when a judge allowed a lawsuit to restore access to abortion in the state.
The case, which revolves around a law passed in 1849 that was seen as banning abortion, could eventually end up in the state’s Supreme Court. Liberal judges will be in the majority in that court starting next month after winning a controversial judicial election this year that focused largely on abortion.
In 2022, after the U.S. Supreme Court struck down the state’s legal right to abortion, clinics stopped offering abortions in Wisconsin, a closely divided state where Republicans control the legislature and a Democrat holds the governorship.
While Democrats have argued that the 1849 law should no longer be seen as prohibiting women from having abortions, others, including prosecutors, have publicly disagreed, creating an uncertain legal landscape in which doctors who performing abortions may be charged with felony.
Judge Diane Schlipper indicated in her preliminary ruling on Friday that the case could proceed, indicating that she does not believe doctors can be prosecuted for performing consensual abortions before a fetus has become viable. She wrote that “there is no such thing as an ‘1849 abortion ban’ in Wisconsin.”
The decision by Dane County Circuit Court Judge Schlipper upheld the legal arguments used by abortion rights advocates and opened a legal path to restore access to abortion. But the immediate effect of her decision was limited and the final word in the case is widely expected to come from a higher court.
“Today’s ruling is a major victory in our fight to restore reproductive freedom in Wisconsin,” Attorney General Josh Kaul, a Democrat who filed the lawsuit against the measure, said in a statement. “While this ruling does not resolve the matter and will not be the last word in this lawsuit,” he said, it made it clear that the law “should not be interpreted to criminalize consensual abortions.”
Friday’s ruling stemmed from a request from Joel Urmanski, the Sheboygan County District Attorney and a defendant in the lawsuit, for the case to be dismissed. Mr. Urmanski, a Republican, had earlier indicated to local reporters that he would be open to prosecuting abortion providers under the 1849 Act if a case were brought before his office.
Mr Urmanski said in an email on Friday that he was in court and had not yet reviewed the ruling. He declined to comment further. Two lawyers representing him in the case did not immediately respond to emails asking for comment.
Heather Weininger, executive director of Wisconsin Right to Life, said in a statement that the ruling was “a devastating setback in our ongoing fight to protect Wisconsin’s unborn children.”
Abortion in Wisconsin has been a defining issue in recent campaigns, with both Mr. Kaul and Governor Tony Evers, a Democrat, noting their support for abortion rights during successful re-election campaigns last year. But because Republicans have a large majority in the legislature, in part because of gerrymandered districts, there is no immediate legislative path to repeal the 1849 measure or pass abortion protections.
That has shifted attention to the judiciary, where conservatives this year defended a one-seat majority on the state Supreme Court. In a spring election, a liberal lawyer named Janet Protasiewicz focused her campaign on her support for abortion rights. She won, meaning the court’s liberal bloc will have a slim majority next month after being sworn in.
If the lawsuit Judge Schlipper ruled on Friday ever makes its way to the Wisconsin Supreme Court, Judge Protasiewicz could be the deciding vote.