Tommy Washbush
The Dane County Courthouse.
In a preliminary ruling issued July 7, Dane County Judge Diane Schlipper allowed a lawsuit challenging Wisconsin's 1849 abortion statute to move forward.
Abortion rights advocates scored a temporary victory last week when a Dane County judge allowed a lawsuit filed by Democratic Wisconsin Attorney General Josh Kaul aimed at restoring abortion access in Wisconsin to move forward. But the legal fight has just begun.
The ball is now in Sheboygan County District Attorney Joel Urmanski’s court to file an answer to the amended complaint filed by Kaul as well as the complaint from physicians who intervened in the lawsuit. Urmanski is required to respond to the complaints by July 21. Once Urmanski files his response, the doctors will ask the judge to rule on whether they can provide consensual abortions without the threat of prosecution.
Urmanski’s attorney did not respond to a request for comment.
Urmanski, a Republican prosecutor, had filed a motion to dismiss Kaul’s lawsuit challenging the 1849 Wisconsin statute that targets medical professionals who provide abortions. Kaul filed his challenge to the 1849 law after the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade, the landmark U.S. Supreme Court case that federally protected the right to an abortion. Wisconsin reverted to the 1849 law when Dobbs was decided.
In the suit, Kaul argues that the 1800s law should be rendered obsolete because it has not been used in more than 50 years and that newer, less restrictive 20th century laws directly conflict with the 1849 statute. Urmanski argued in his motion to dismiss Kaul’s lawsuit that the more recent abortion-related state laws supplement the ban, rather than conflict with it.
In her preliminary ruling on Urmanski’s motion to dismiss the case, Dane County Judge Diane Schlipper said physicians can continue to provide consensual abortions. She wrote that “there is no such thing as an ‘1849 Abortion Ban’” because the term “abortion” is not used in the statute. Instead, she said, the ban outlaws feticide.
Diane Welsh, an attorney at Pines Bach LLP, represents the three physicians — an emergency room physician, a physician who focuses on maternal fetal medicine and an OB GYN — who intervened in the lawsuit. Intervenor plaintiffs are third parties that join a case because they have a personal stake in it.
Once Urmanski files his answer, “the physicians will be moving the court for a final declaratory judgment consistent with the holding here, which states that prosecutors can't prosecute physicians for providing consensual abortions,” Welsh says.
Welsh says that as part of her clients’ practice they perform abortions to preserve the health of the mother where there might be a fetal abnormality incompatible with life, or other conditions for which an abortion is medically indicated.
“We would be filing our motions shortly thereafter because we've already had a lot of briefing in this case,” Welsh says. “We don't think we need months and months to go. Hopefully it will be resolved by fall.”
Instead of answering the complaints in Dane County Court, Welsh says Urmanski could instead ask the Wisconsin Court of Appeals to review Schlipper’s denial of his motion to dismiss.
When there is a final decision, the losing party has the right to appeal the case to the state Supreme Court, which is where many have predicted the case will eventually go.
