Here & Now

Howard Schweber on the Lawsuit Over Wisconsin's Abortion Ban

Frederica Freyberg:

In other news, Wisconsin’s 173-year-old abortion ban outlaws killing fetuses but does not apply to consensual medical abortions. That was the ruling of a Dane County judge allowing a lawsuit challenging the ban to proceed. The judge said the legal language in the ban does not use the term “abortion,” so the law only prohibits attacking a woman in an attempt to kill her unborn child. “There is no such thing as an 1849 abortion ban in Wisconsin,” the judge wrote. Here to unpack the legal language and implications, emeritus professor of political science and affiliate faculty member of the UW Law School, Howard Schweber. Thank you for being here.

Howard Schweber:

My pleasure. Thanks for having me.

Frederica Freyberg:

So what was your reaction to the Circuit Court ruling that said there is, “no such thing as an 1849 abortion ban”?

Howard Schweber:

It’s a very sharp point, and one that I think had been largely overlooked. To back up a little bit, there are longstanding statutes and common law principles that say, for example, if there’s a car accident in which a fetus is destroyed, that can be a crime, even if abortion is legal in that particular state. If someone deliberately attacks a pregnant woman, this is the instance that the judge referred to, with the intention of causing a miscarriage, that’s been a crime both under statute and English common law for a long time because it’s an injury to the woman but has nothing to do with the question of voluntary abortion. So while I think that some viewers, it might seem strange to draw this distinction, actually it’s very deeply rooted in American law, English law. It goes back forever that you can have legal claims having to do with the destruction of a fetus without necessarily having a law that has anything to say about voluntary abortions and that’s the distinction the judge drew, and frankly I think she’s quite right. I think in 1849 in particular, when we were much closer to our common law roots in the way we thought about these categories, it would have been unsurprising to make this distinction between a tortious act or a wrongful act that causes a miscarriage versus an abortion. These are just two very distinct and different things.

Frederica Freyberg:

So to non-lawyers, though, it seems surprising because that’s not the argument the Josh Kaul lawsuit is using to overturn the 1849 law, right?

Howard Schweber:

Right. Which is interesting. As I say, it was a sharp point and it took many people by surprise, partly because we are so unused to thinking in 19th Century legal categories. This is one of the problems with appeals to history, whether it’s a Supreme Court justice talking about originalism or someone talking about a 19th Century law. You have to put yourself in the mind frame and the understanding of that period and legal understandings in particular were just very different back then. So Kaul tried to couch this in purely modern terms. Is it too sweeping? Is it too vague? Was the law effectively overruled by the enactment of a later law? I suspect, to be honest, that in his office, it just didn’t occur to anyone to go back to the common law principle underlying the 1849 law and say what was that principle about. If you want an analogy, it is a crime to punch someone in the nose. It is not a crime to punch yourself in the nose. I know that sounds like a silly analogy, but in those kind of basic legal categorical terms, that’s the kind of distinction we’re drawing here.

Frederica Freyberg:

How does the Kaul case go forward in light of this ruling?

Howard Schweber:

Well, in light of — first of all, this ruling will certainly be appealed, so I think at this point, all the actions is on this ruling and the appeal under its law, but the case will go forward and result, assuming the ruling stands, in a declaratory judgment, which is a statement by the court that, look, this is the rule, just so that everybody knows, that doctors, for example, cannot be prosecuted for performing abortions unless those abortions are in violation of the 1980s law. In other words, unless they’re post-viability. And we would effectively in Wisconsin be restored to the framework that was established in the Supreme Court case called Casey, which is one of the — Casey and Roe are the two big abortion cases. Effectively the Wisconsin statute imposed the Casey framework, and unless and until the legislature changes it, that’s where we would be. So one way to think about this is that the Supreme Court in Dobbs overruled Roe, so there’s no national constitutional right to abortion but they said states can establish rights to abortion as they see fit, and the effect of this ruling is that Wisconsin did in the 1980s – in 1985 – is the law in Wisconsin unless and until someone changes it.

Frederica Freyberg:

What does the timeline look like for this case now in Dane County to get to the Supreme Court where Democrats, of course, want it to land after the August 1st investiture of liberal Janet Protasiewicz? What’s the timeline look like?

Howard Schweber:

Well, so there’s the normal timeline and an expedited timeline. Neither one — under neither situation can I imagine this case reaching the Supreme Court before August 1st.

Frederica Freyberg:

Professor Howard Schweber, thanks for joining us.

Howard Schweber:

My pleasure.

Frederica Freyberg:

For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight. I’m Frederica Freyberg. Have a good weekend.

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