What Eric Toney said about district attorneys and prosecuting abortion cases

Comments made by the Republican candidate for attorney general of Wisconsin in a July 1 interview with PBS Wisconsin have become a major focus of attention at the tail end of the race — here's how that debate unfolded and what he originally stated in response to a question about prosecutorial discretion.

By Zac Schultz

October 28, 2022

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A split screen shows Josh Kaul and Eric Toney both standing behind podiums with microphones and a curtain behind them.

The 2022 candidates for attorney general of Wisconsin — Josh Kaul (at left) and Eric Toney (at right) — debated at the headquarters of the State Bar of Wisconsin on Oct. 27, 2022. (Credit: Courtesy of WISC-TV)

In the closing weeks of the race for Wisconsin attorney general, Republican challenger Eric Toney’s comments on prosecuting abortion cases have become a key focal point for Democratic incumbent, Josh Kaul.

In a debate on Oct. 27, Kaul said, “What I don’t think we should have is what my opponent has suggested, which is DAs going across county lines to prosecute people for abortions, having a roving abortion ban enforcers. That’s what he’s suggested. That’s not what we need to be doing.”

Toney responded: “We have an attorney general that speaks without the facts. I encourage you to read the Cap Times article from Jack Kelly, where he put the full quote out there where I never made that proposal.”

The debate stems from an interview conducted by PBS Wisconsin with Eric Toney on July 1 in a Fond du Lac County courtroom.

During a 45-minute interview, the topic of abortion lasted five minutes. Toney made the following statement, which PBS Wisconsin included in an Oct. 14 story about the race for attorney general.

“We need to give our attorney general the authority to prosecute. They already would have the technical authority to investigate it,” Toney said. “And I think another approach would be allowing for adjoining counties to be able to investigate and enforce that abortion ban in Wisconsin.”

After the story aired, the quote from Toney was the focus of an Oct. 17 article by the Milwaukee Journal Sentinel, which in turn was highlighted that day by the Democratic Party of Wisconsin and prompted a press conference by Kaul on Oct. 21, and was subsequently examined in an Oct. 25 article by The Capital Times.

Rather than defend the statement, Toney has said his statement was taken out of context. He repeated that claim later in the Oct. 27 debate responding to a question about allowing DA from prosecuting abortion cases in adjoining counties.

“Well, again, the premise of the question is incorrect, because the full context of the quote was asked about DAs that wouldn’t prosecute certain crimes,” stated Toney. “And we have a couple of statutes on the books right now, election fraud and state ethics codes that actually allow a district attorney to prosecute in an adjoining county if the DA of that county refuses to prosecute. So I use it as an analogy to say our attorney general should have authority if a DA is refusing to prosecute. And that would be another option. I never expressly advocated for it. We are talking about the authority of the attorney general, where our attorney general has advocated for the attorney general to have original jurisdiction across the entire state of Wisconsin, which would give the attorney general the authority to prosecute and enforce the abortion ban in every single county in Wisconsin.”

To highlight the context of Toney’s original statement, here is the portion of the July 1 interview that touched on prosecutorial discretion and abortion.

Here is the question asked of Toney: “We have had examples in counties across Wisconsin of prosecutors saying, I’m not going to prosecute for certain levels of marijuana offenses or possession or prioritizing which issues they are going to focus on. And that has happened on social questions. Does abortion fit in that same category? Can you legitimize or quantify that as the same as like under an ounce possession of marijuana and deciding we’re not going to prosecute that?”

Here is Toney’s complete response: “I think it is egregious to try and compare marijuana possession to abortion. We’re talking about life and I understand some of my DA colleagues have taken that approach on marijuana. We have a different approach here in Fond du lac County where we will prosecute people for marijuana possession. And what I’d like to see is if we have DAs, maybe law enforcement that just say, we’re not going to be investigating or enforcing this, we need to give our attorney general the authority to prosecute. They already would have the technical authority to investigate it and I think another approach would be allowing for adjoining counties to be able to investigate and enforce that abortion ban in Wisconsin to make sure that we have a level playing field across the state of Wisconsin. And we have some statutory framework for that already where there is some framework within the elections code and the ethics code where adjoining county DAs can enforce that if another DA decides that they’re not going to. And that makes sure that we have a level playing field that gives clarities for the people of Wisconsin, the medical community and makes sure that we enforce the rule of law.”

The 2022 election, which includes the race for attorney general of Wisconsin, is on Nov. 8.

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