Wisconsin Supreme Court Justices Take On an Abortion Lawsuit

Frederica Freyberg:
This week, the Wisconsin Supreme Court heard oral arguments on whether the state’s 1849 abortion ban is the law of the land. The law went into effect when the United States Supreme Court overturned Roe v. Wade in 2022. Abortions halted in Wisconsin until September of 2023, when a Dane County judge ruled the law actually referred to feticide. “Here & Now” senior political reporter Zac Schultz was at the hearing and tells us no matter what the court decides, abortion as a political issue is not going away.

Zac Schultz:
When the U.S. Supreme Court issued the Dobbs decision, Republicans said the court was simply returning the issue to the states.

Brian Hagedorn:
I mean, we’re trying to get it right, I hope not just get an outcome here.

Zac Schultz:
It turns out that’s a little more complicated than it sounds.

Jill Karofsky:
We’re trying to figure out if medical providers here are going to be able to save women’s lives. So yeah, we better get this right.

Zac Schultz:
Over nearly two hours of oral arguments Monday, the members of the Wisconsin Supreme Court heard arguments along several lines about which of Wisconsin’s many laws regulating abortion should apply.

Hannah Jurss:
The state of Wisconsin cannot have two laws on the same subject, with the same scope, that provide directly conflicting answers as to when conduct is and is not a felony.

Zac Schultz:
The heart of the issue is this. In 1849, Wisconsin passed a law outlawing abortion referred to in arguments by its statutory number 940.04. In 1973, the U.S. Supreme Court issued Roe v. Wade, which created a constitutional right to abortion health care. The old law was unenforceable. In the years that followed, Wisconsin passed several laws regulating abortion. Most recently a law in 2015 that created a cutoff of 20 weeks with an exception for the life of the mother, but no exceptions for rape and incest. So, with Dobbs overruling Roe, which law should apply? Lawyers representing Democratic Attorney General Josh Kaul and doctors intervening in the case argue the 1849 law was impliedly repealed when the laws were updated after Roe was in effect.

Diane Welsh:
The legislature has spoken and they’ve laid out a myriad of statutes that govern when abortion can be provided, when women in this state can obtain lawful abortions.

Zac Schultz:
Justice Brian Hagedorn says the court can’t ignore those later laws were trying to comply with Roe and never actually repealed the original ban.

Brian Hagedorn:
We all know what happened so unless there’s some conflict, the laws were not reversed off the books. I don’t know why, as a matter of straight, just reasonable statutory interpretation, the law is still there. It’s still there. The judiciary doesn’t get to edit laws. The judiciary doesn’t get to rewrite them. We didn’t delete it. We prevented its enforcement. Now it’s still there. How can we just say, “Oh, we can’t enforce it anymore simply because the legislature was doing other things when it was unenforceable.”

Jill Karofsky:
All of that body of law, all of those statutes regarding abortion, just go to the dust pile?

Attorney:
No, that’s not what we’re saying at all.

Jill Karofsky:
But it is what you’re saying because you’re saying that if they were passed after Roe and if they were passed with Roe in mind, then they mean something different today than they meant before Dobbs.

Zac Schultz:
The liberals on the court hold a 4-3 majority, and if they rule the 1849 abortion ban was impliedly repealed, it would mean that, ironically, it was a law passed by Republican Governor Scott Walker in 2015 that saved abortion in Wisconsin.

Rebecca Dallet:
Our legislature decided fairly recently, at least in the scheme of these, these regulations, that an abortion may not be performed after 20 weeks unless the mother is undergoing a medical emergency. That’s not based on Roe. That is the legislative policy that was chosen by this state’s legislature.

Zac Schultz:
No matter how the court rules, the issue of abortion is not settled law, a point made clear by Chief Justice Annette Ziegler.

Annette Ziegler:
The issue before this court relates to 940.04, whether Black rules, whether it’s impliedly repealed, whether it’s still on the books, it won’t answer every question for everyone today. People need to be before the legislature and ask them to do their job.

Zac Schultz:
After all, the balance of the court could change in the Supreme Court election next April or a different governor and legislature could write a new law, a point made by Attorney General Kaul after the hearings.

Josh Kaul:
Whatever happens in this case, the issue, I don’t think, is going to be permanently resolved in Wisconsin. Certainly, this will provide important clarity, and I think we’ll at least for a time period, address at least what current Wisconsin law says.

Zac Schultz:
Reporting from Madison, I’m Zac Schultz for “Here & Now.”