Dueling Wisconsin Abortion Laws Draw Focus at Court Hearing

A Wisconsin court hearing Thursday highlighted a knotty problem playing out in several states over whether the US Supreme Court has given new life to antiquated laws criminalizing abortion.

Wisconsin Assistant Attorney General Hannah Jurss insisted during oral arguments that the top court’s decision in Dobbs v. Jackson Women’s Health Organization didn’t act as a trigger for reanimating old laws that haven’t been enforced since 1973, when the court decided Roe v. Wade.

But a Wisconsin criminal abortion law that’s been on books since the 1800s has never been voided or repealed, meaning that prosecutors have discretion to enforce it, Matthew J. Thome said. Thome, of Attolles Law SC, represents Joel Urmanski of Sheboygan County, one of three county district attorneys named as defendants in the case.

Before Dane County Circuit Court Judge Diane Schlipper can get to that question, however, she will have to decide if the suit filed by Attorney General Josh Kaul (D) and members of the state’s medical board can even proceed.

Whatever the outcome, the case is likely to wind up in the Wisconsin Supreme Court, where a new liberal majority now reigns following Justice Janet Protasiewicz’s election by a relatively large margin. The state supreme court race was widely seen as a test of Wisconsin citizens’ views on abortion.

Standing Question

Thome urged Schlipper to dismiss the case, at least as to Kaul, because he’ll suffer no injury if the 1800s law is revived. Kaul’s in no danger of being prosecuted for violating the law, Thome said. The Dane and Milwaukee county district attorneys didn’t ask for dismissal on this ground.

The intervenor plaintiffs—three doctors—have standing because they potentially could be charged with a crime under the old law, Jurss replied. That’s enough to allow the whole case to move forward, she said.

Jurss also defended Kaul’s ability to bring the declaratory judgment action, saying that he has a duty as the state’s attorney general to know what the law is and to advise others on how to proceed. Kaul can’t do that when dueling laws may lead to different answers, she said.

Looking at the standing question from another angle, Schlipper asked if the district attorneys’ interests are adverse to the state’s interests. The attorneys for Milwaukee and Dane counties have said they won’t prosecute doctors under the 1800s law, she said.

The district attorneys’ statements aren’t really relevant, Jurss said. The suit is against the attorneys’ offices, and future district attorneys may decide to charge alleged violations, she said.

Repeal or No Repeal

Much of the argument was taken up with a debate over whether laws and regulations enacted in the 1980s have any effect on the validity of the 1800s law.

Jurss argued that those later laws impliedly repealed the earlier statute, pointing to legislative history suggesting that an anti-repeal provision was proposed, but not adopted. Thome countered that there also was proposed repeal language that didn’t make it into the final version.

Alternatively, the later-enacted laws and regulations impliedly repealed the earlier law, Jurss said. The two statutory schemes “irreconcilably conflict” such that the newer provisions completely supplanted the old law, she said.

The intervening doctors’ attorney, Leslie Freehill of Pines Bach LLP, added that regulations requiring doctors to have admitting privileges at local hospitals and those permitting abortions in cases of rape or incest or to save a pregnant person’s life can’t be reconciled with a law that criminalized all abortions.

Thome said that any implied repeal is limited to the extent of the conflict. The laws currently can be “harmonized,” and prosecutors can decide whether to charge under one law or the other, or not to charge all, he said.

“So doctors should just choose their counties carefully?” Schlipper asked.

No, Jurss said. There must be a “consistent body of law people can use” to determine if a particular course of conduct would violate the law—and there isn’t one at the moment, she said.

Lieb Knott Gaynor represents Milwaukee County District Attorney John Chisholm. Stafford Rosenbaum LLP represents Dane County District Attorney Ismael Ozanne.

The case is Kaul v. Urmanski, Wis. Cir. Ct., No. 2022CV001594, oral arguments 5/4/23.