Here & Now

Wisconsin DAs and Prosecuting Abortion Cases

Frederica Freyberg:

Shortly after the high court overturned Roe v. Wade, Governor Evers announced he would grant clemency to anyone charged under the abortion ban and would not appoint state prosecutors who agreed to enforce the law. Our next guest is a sitting district attorney. What will he do? Democrat Tim Gruenke is the DA in La Crosse County. He joins us now and thanks very much for being here.

Tim Gruenke:

Glad to be here.

Frederica Freyberg:

So you have said that you don’t agree with the overturning of Roe v. Wade but would be obliged to prosecute abortion cases under the law. Why?

Tim Gruenke:

I think that in the executive branch, our function is to enforce the laws. And there are many laws that the legislature passes that I might have a disagreement with or I think are unwise or sometimes might be actually more harmful than good. I can prioritize my cases. I can deemphasize some of the laws. We come up with creative solutions like diversion agreements or ordinance violations, but I’ve never said of any law that I would never prosecute a law. I think our job is to enforce laws as prosecutors. So if the law were passed, if the law were held valid by the courts, I have to prosecute it just like any other case. I would look at the facts. I would determine if it’s a good case. I would determine if we could prove it. Would a jury convict and questions like that? But I would never say about any crime that I would never prosecute it or that I would always prosecute it.

Frederica Freyberg:

What do you think about DAs who outright state they will or will not charge certain types of cases like the Dane County DA who pledges not to prosecute abortion cases?

Tim Gruenke:

I understand the sentiment. I also think that women should have the right to control their own bodies and I — Im upset that Roe vs. Wade was overturned, but my personal feelings just don’t play into it. When the legislature passes a law, that’s supposed to reflect the will of the people. As a DA of La Crosse County, Im supposed to represent all people of La Crosse County and not just take my personal views into it. Just like I don’t agree when prosecutors say they won’t enforce gun restrictions because they’re Second Amendment fans or when prosecutors say they won’t enforce certain domestic violence or sexual assault cases because they have a different idea of the law. I think it’s the same thing. I don’t think DAs should be in the business of not prosecuting laws passed by legislature.

Frederica Freyberg:

As a district attorney who would have the discretion to prosecute abortion cases, would you practically, though, right now be able to take a case to court?

Tim Gruenke:

Practically I don’t know that it’s possible right now. In Wisconsin there’s actually two abortion statutes that somewhat conflict with each other. There’s one passed in 1849 and then one in 1985. They have different penalties. They have different exceptions. They have different definitions. So at this point, Im not sure which one the legislature intends us to follow. So it would be difficult for me to try to get a case, figure out which law would apply, and practically go forward and prosecute that case until the courts make a ruling or attorney’s general lawsuit is successful or the legislature pass as law that’s both clearer and reflects the intent of Wisconsin people. I think it would be hard practically to enforce the laws on the books now.

Frederica Freyberg:

So you effectively are with Josh Kaul in saying it’s unenforceable at this time, is that the same thing?

Tim Gruenke:

I think it’s practically enforceable. When the case comes, the facts may be such that it’s different. But at this, I’m not sure how district attorneys are supposed to understand which of two laws are supposed to be enforced when they’re prohibiting the same conduct but different definitions and penalties and seem to have different legislative intent.

Frederica Freyberg:

If the courts as a result of Josh Kauls lawsuit uphold the near complete ban on abortions in Wisconsin, how do those cases even come in you for charging? Who refers them? What does that look like?

Tim Gruenke:

There’s another question that practically Im not sure that that would become an issue because we don’t have the ability to go into doctor’s offices. Healthcare is obviously confidential. We certainly don’t send our investigators to hospitals and even if we did, I don’t think they would gave us any information. So Im not clear on how a case would even come to us. And if it did, Im not sure what information we would be able to gather and so I think it’s practically very different to enforce this ban, even though a lot of people think it’s a change. I’m not sure much is going to change in most counties in Wisconsin.

Frederica Freyberg:

So you are standing by to find some clarity around these laws.

Tim Gruenke:

I would urge the legislature to do what I think a lot of people wanted, when Roe vs. Wade was overturned, was the ballot to the states. And I think they should have that discussion, find out what does Wisconsin really want. Do we want exceptions? Do we want a certain time period? How are we defining health of the mother? Is it physical health? Mental health? Financial health? Emotional health? There’s a lot of things in the statues right now that need to be fixed and I would think the legislature would want to welcome that and have that discussion and give us some clarity on what exactly it is we’re supposed to be prosecuting.

Frederica Freyberg:

Tim Gruenke, DA, La Crosse County, thanks very much.

Tim Gruenke:

Thank you.