MADISON – Wisconsin Attorney General Josh Kaul on Tuesday filed a lawsuit against state legislative leaders challenging the state’s 173-year-old criminal abortion ban.

The filing, announced by Kaul and Gov. Tony Evers – both Democrats – names State Senate President Chris Kapenga, State Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos – all Republicans. Kaul was joined in the lawsuit by the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board and Dr. Sheldon Wasserman, who is the state Medical Examining Board’s chairperson.

The suit was filed in Dane County Circuit Court.

Tuesday’s action was taken in response to the U.S. Supreme Court’s decision last Friday to overturn Roe v. Wade, a nearly 50-year-old ruling that had legalized abortion on a national level. The high court’s ruling sends abortion laws and enforcement back to individual states.

Governor’s office weighs in on abortion ban

“Wisconsin’s criminal abortion ban—which originated in 1849 before the Civil War and at a time when Wisconsin women did not have the right to vote—would ban nearly all abortions in Wisconsin, including in cases of rape and incest. In anticipation of the Supreme Court’s decision in Dobbs and the prospect of Wisconsin’s criminal abortion ban potentially going into effect, healthcare providers in Wisconsin have already begun halting abortion procedures across the state,” the governor’s office stated in a Tuesday afternoon news release.

In January of this year, just days before the 49th anniversary of the landmark decision in Roe, Evers and Kaul called on the Wisconsin State Legislature to repeal Wisconsin’s criminal abortion ban. Earlier this month, they again called for legislative action, announcing a special session of the Wisconsin State Legislature to take up a clean repeal of the ban. Legislative leaders met briefly last Wednesday and took no action.

“Access to safe and legal abortion stopped in Wisconsin last Friday. With this lawsuit, we are fighting to restore reproductive freedom in Wisconsin,” Kaul said in a statement. “The Republican-led legislature’s failure to act during last week’s special session has left Wisconsin law regarding abortion in a state of uncertainty. This lawsuit is asking the court to clarify that Wisconsin’s 19th-century abortion ban with no exceptions for rape or incest has not gone back into effect.”

Assembly Speaker Vos weighs in on the filing

Assembly Speaker Robin Vos (R-Rochester) said in a statement to Madison’s WKOW-TV that he will continue to defend the existing state law.

“It’s sad that Evers and Kaul want to break the law instead of work with the Legislature,” he said. “Abortion isn’t health care and for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v. Wade decision over 50 years ago. I’m confident our courts will see through their tactics and uphold the law.”

Tuesday’s lawsuit argues Wisconsin state statutes contain two sets of criminal laws that directly conflict with each other if both are applied to abortion and therefore Wisconsin’s 19th-century criminal abortion ban, Wis. Stat. § 940.04, has been superseded by more contemporaneous legislation and cannot be enforced. Similarly, the lawsuit argues that several state laws regulating how a physician can lawfully provide an abortion conflict with the 19th-century criminal abortion ban. More specifically, provisions, including a waiting period, the use of ultrasound, and how abortion-inducing drugs are administered, among other things, by virtue of providing parameters for when a physician may lawfully perform an abortion, are incompatible with the pre-Roe statute that broadly criminalizes abortion.

The lawsuit seeks declaratory judgment and asks the court to clarify that Wis. Stat. § 940.04 was impliedly repealed by subsequently passed abortion-related statutes that conflict with it and is unenforceable.

Read the filing here:

Click to access EversKaul_Criminal%20Abortion%20Ban%20Complaint.pdf