Tommy Washbush
The sign outside Planned Parenthood at 3706 Orin Rd.
The constitutional challenge to abortion restrictions is a new legal strategy for abortion rights advocates in Wisconsin.
Last summer, when the Wisconsin Supreme Court ruled that the state Legislature had “impliedly repealed” an 1849 abortion statute by passing several subsequent restrictive abortion laws, Nicole Safar of Planned Parenthood of Wisconsin applauded the decision but said she wished the court had gone further.
The court, she told Isthmus at the time, protected “the status quo without taking an opportunity to step in and talk about our state Constitution, which has clear language in it that talks about our inherent right to liberty and the pursuit of happiness.”
She added: “We must look to our state Constitution in this moment when the federal system has failed to protect our civil and individual rights.”
That day has arrived. Planned Parenthood of Wisconsin announced in a virtual news conference today that it has filed a “first of its kind” constitutional challenge to two Wisconsin abortion restrictions — the mandatory 24-hour waiting period, which requires patients to make two separate visits to receive treatment, and the requirement that only physicians provide abortion care.
Planned Parenthood of Wisconsin v. Ozanne, filed in Dane County Circuit Court, lists District Attorney Ismael Ozanne as a defendant (as a class representative of district attorneys statewide), along with members of the state Medical Examining Board and members of the state Board of Nursing.
Tanya Atkinson, president and CEO of Planned Parenthood of Wisconsin, said at the news conference that the lawsuit is asking Wisconsin courts to “protect something fundamental. Our freedom to make our own decisions about our lives, our health and our futures.”
“At the heart of this case is a powerful promise,” she said. “The Wisconsin Constitution begins by declaring that all people are born equally free and independent and possess inherent rights, including life, liberty and the pursuit of happiness. This case asks our court to recognize what we believe that promise means. That our constitutional freedom includes the ability to make deeply personal decisions about our reproductive health care without unnecessary government interference.”
Atkinson noted that state lawmakers have, for decades, “chipped away” at that freedom, “one restriction at a time.”
Dr. Allison Linton, the chief medical officer for Planned Parenthood of Wisconsin, who is a plaintiff in the lawsuit along with other clinicians, noted that while the restrictions targeted in the lawsuit are often presented as protections for patients, “they are not.”
“Abortion care is incredibly safe,” she said. “It is one of the safest forms of healthcare that we provide. Serious complications are rare and the risk of death associated with abortion care is significantly lower than the risk of carrying a pregnancy to term and giving birth.”
Requiring two visits to a health center, she said, does not make abortion safer and is not based on medical evidence. The restrictions present undue burdens on patients, particularly for those who live far away from a clinic, have limited resources, childcare needs, and little flexibility in their jobs, Linton added.
There is also no medical reason why trained nurse practitioners and nurse midwives who provide abortion care in other states and, said Atkinson, have “extensive training in providing reproductive health care,” should not be allowed to do the same in Wisconsin.
Howard Schweber, an emeritus professor of political science at UW-Madison, says in an interview that the plaintiffs in the lawsuit are “asking for the Wisconsin state Constitution to continue guaranteeing the rights that used to be guaranteed by the federal Constitution.” The 14th Amendment of the United States Constitution used to protect the right to abortion, among other rights, adds Schweber. That changed when the U.S. Supreme Court overturned legal abortion with its 2022 Dobbs’ decision.
"State courts are free to find rights under their own constitutions that go beyond the rights guaranteed under the US. Constitution," adds Schweber.
In response to Planned Parenthood’s lawsuit, Dan Miller of Pro-Life Wisconsin, which opposes abortion, said in a written statement that “There is no right to abortion in the Wisconsin Constitution. Any effort to find one is purely arbitrary. Pro-Life Wisconsin vows to fight the murder of preborn Wisconsinites who have no voice but the pro-life movement.”
The two restrictions being challenged by Planned Parenthood are not the only ones passed by state legislators since the U.S. Supreme Court legalized abortion nationwide in its 1973 ruling in Roe v. Wade. In Wisconsin, abortion is banned at 20 weeks after fertilization; patients are required to get an ultrasound before having an abortion; state Medicaid coverage of abortion is banned except in limited circumstances; and parental consent is required for minors, among other restrictions.
A reporter at the news conference asked whether the timing of the lawsuit was “politically motivated,” coming two months before the midterm elections.
“The reality is we need to move forward and politics have driven too many decisions about abortion access and that’s been normalized,” said Atkinson. “So even the question indicates how much politics is an expected part of abortion access. Abortion is healthcare and so to have the elections be a calculus in when we file a lawsuit just underscores how normalized it is to have abortion and politics mixed together.”
Today’s filing by Planned Parenthood also comes just a month after Justice Chris Taylor took her seat on the state Supreme Court. Taylor, a former legislative director for Planned Parenthood, was a staunch defender of abortion rights during her years as a state representative and made abortion access a key part of her platform when running for the high court. While the lawsuit will first be decided in circuit court, it is likely to be appealed.
In an interview with Isthmus after the state Supreme Court in July 2025 overturned the state’s 1849 abortion law, Schweber said the court took a cautious approach in Kaul v. Urmanski, sidestepping the issue of a constitutional right to an abortion.
He surmised that the liberals on the court might be waiting for the results of the 2026 Supreme Court election. Another liberal win would create a 5-2 liberal majority on the court and that is what has come to pass with Taylor's victory.
"A 5-2 majority might feel willing to do things that are more sweeping than a 4-3 majority," says Schweber.
Schweber says anyone who files a lawsuit pays attention to the court they are filing in. "You file when you think you have a sympathetic bench."
