Here & Now

A Lawsuit Takes On Wisconsin's 1849 Abortion Ban

Frederica Freyberg:

Having both the old and new laws on the books makes the 1849 law unenforceable. That’s according to Wisconsin Attorney General Josh Kaul. He’s filed a lawsuit seeking to clarify whether the 173-year-old ban is still in place. Josh Kaul joins us now from the Capitol. Thanks very much for being here.

Josh Kaul:

Thanks for having me.

Frederica Freyberg:

Why according to your lawsuit would the 1849 abortion ban be unenforceable?

Josh Kaul:

Well, first I think it’s important just to say where we are, which is you know, we’re a week after Roe v. Wade was overruled and the impact of that is that women in Wisconsin today are less free, less equal, and less safe than they were just a week ago. So we are doing what we can to work to restore access to safe and legal abortion in Wisconsin. Now, our suit argues that the 18 — mid 1800s ban doesn’t come into effect even though it’s still on the books for a couple reasons. One is there were a series of laws that were passed much more recently that are inconsistent with that 19th Century ban. So for example the 19th Century ban doesn’t have an exception even to protect the health of the mother. But the new legislation does have an exception to protect the health of the mother. And it can’t be simultaneously legal and illegal for a doctor to perform an abortion that protects the health of the mother. So to make sure that our statutes continue to have effect, in more recent ones that is, the old one can’t be enforced. Now we also argue that old statute has gone into disuse because it was rarely used before and of course hasn’t been used in the last 50 years.

Frederica Freyberg:

Has this happened before where an earlier law that remains on the books was superseded by a later one?

Josh Kaul:

There is precedent for laws to be impealed — I’m sorry, impliedly repealed. It’s certainly not common but this is not a common situation. We’re in a situation here where the legislature acted with the understanding that abortion was protected. That we have a right that was taken away from Americans after almost 50 years. We’re certainly in uncharted waters here. But you know, that — sorting these issues out so there’s clarity as to what the law is is really critical.

Frederica Freyberg:

Even though there are competing abortion laws on the books, is it as of today illegal? I mean, providers are certainly practicing that way with Planned Parenthood turning away people immediately following last Fridays ruling but is it immediately illegal?

Josh Kaul:

Well, our argument is that it’s not because that old statute is not in effect but providers are, of course — they don’t want to take a chance that what they will be doing could lead to a criminal prosecution. So this suit will help determine exactly what the state of the law is. One of the reasons it’s so important that we go forward with this suit is that Wisconsin providers need to have clarity about what the state of the law is. The best way to get that clarity would be for our legislature to come into session and actually consider legislation on this and hopefully protect reproductive freedom. But absent that, having this litigation will hopefully at least begin the process of providing clarity as we try to think about whether and how a 19th Century law that was in place would apply to 21st Century medicine.

Frederica Freyberg:

Still, could a DA intent on prosecuting a case under the 1849 law do so now?

Josh Kaul:

Well, my office can’t stop them from doing so. They can choose to use their resources however they want. I would discourage them from doing that because Id much rather see them using their limited resources to prosecute serious offenses like homicides or sexual assaults or drug trafficking. But whether they can or not will ultimately depend on what happens with our suit, because if the law can’t be enforced, if we receive that ruling in the suit, then there would be no basis for enforcement. But if the Supreme Court finds that it can be enforced, then it’s up to the DAs whether they do in fact prosecute cases.

Frederica Freyberg:

What’s your sense as to how fast any kind of ruling might be made on this?

Josh Kaul:

I think it’s likely to be a matter of months. You know, this is a legal dispute fundamentally, not a dispute about underlying facts. And so I think a court can rule relatively quickly. But of course, there will be briefing. There will be arguments before the court. And then after the circuit court rules, there’s likely going to be appeals as well. So we’re not going to have clarity immediately. It’s going to take a bit of time. But I do want it to move through the court system as quickly as possible. In the meantime, I have called and continue to call on the legislature to come into session and help provide some clarity here so doctors and nurses and women in Wisconsin have a better understanding, a clearer picture of what the law is.

Frederica Freyberg:

So we should tell our viewers that we did invite Republican legislative leaders to appear tonight. Neither of them responded. But here is what Speaker Vos said about your lawsuit. He said, “It’s sad that Evers and Kaul want to break the law instead of work with the legislature. I’m confident our courts will see through their tactics, he says, and uphold the law.” What is your response to Speaker Vos’ statement?

Josh Kaul:

Well, first, part of the issue here is we have inconsistent laws. And which sets of those laws apply is one of the things we want to solve through the courts. But we are also happy to work with legislative leaders. The governor called the special session and most Republican lawmakers didn’t even show up for that special session. They gaveled in and gaveled out and then just a few days later, we were left in this state of legal uncertainty because Roe was overturned and we still haven’t heard from our legislators. This is a huge development in Wisconsin that’s impacting many people’s lives. And Wisconsinites deserve to have their legislators step up, hear from them on these issues, debate these issues, and I hope ultimately act to protect access to safe and legal abortion.

Frederica Freyberg:

So just briefly, if you worked with the legislature at this point, even after that special session, what would you seek?

Josh Kaul:

Well, I would want them to restore access to safe and legal abortion in Wisconsin. You know, the situation that we had in Wisconsin prior to Roe being overturned was actually a fairly restrictive set of rules. A lot of the laws that are in place were signed by Governor Walker. And returning to that kind of situation, where women who need to obtain abortions are able to get them and are safe doing so. It’s critical to protecting the health and safety of Wisconsin women. We know that when abortion is illegal, it doesn’t stop abortion from happening. What it stops is safe and legal abortion from happening. We’ve got to get back to protecting people’s reproductive freedom.

Frederica Freyberg:

We leave it there. Josh Kaul, attorney general. Thanks very much.

Josh Kaul:

Thanks for having me.