Wisconsin Attorney General Josh Kaul is attempting to “transform” the Wisconsin state constitution in a radically progressive way, sparking backlash and resistance from many.
In the battle for life in the Badger State, Kaul has made an “extraordinary request,” in the Badger State claiming to the Wisconsin Supreme Court that there is a constitutional right to abortion in Wisconsin.This radical action comes despite there being nothing in the Wisconsin Constitution that guarantees a right to abortion. There are, however, plenty of prohibitions against abortion in Wisconsin’s founding document and subsequent state laws.
Milwaukee-based public-interest law firm, Wisconsin Institute for Law and Liberty, argues in a response filed in an appeal before the court.
“He seeks to expand the scope of his own case while it is up on appeal — and to add a constitutional claim no less. Not just any constitutional claim, either. He hopes to transform this case into a vehicle to create a constitutional right to abortion in Wisconsin,”
Notably, Wisconsin’s abortion industry defender has already won by losing in the leftist, Madison-based Dane County Circuit Court. Whether Kaul’s expanded argument will stand in the liberal-controlled state Supreme Court remains to be seen.
The attorney general late last month took the unusual legal step of filing a supplemental petition asking the court to take jurisdiction over Kaul, et al. v. Urmanski, et al. Sheboygan County District Attorney Joel Urmanski appealed the earlier Dane County Circuit Court ruling that Wisconsin’s 175-year-old statute barring doctors from performing abortions in most cases doesn’t do that. Contrary to interpretations of the law enacted just after Wisconsin statehood, Judge Diane Schlipper found that “Wis. Stat. § 940.04 does not prohibit abortions.” The law only applies to infanticide, according to the interpretation of the judge, a former social worker and federal prosecutor.
Following the U.S. Supreme Court’s landmark Dobbs v. Jackson Women’s Health ruling that found the U.S. Constitution does not guarantee the right to an abortion, Wisconsin’s long-dormant statute prohibiting abortion sprang back to life. It had been silenced for nearly 50 years following the 1973 unconstitutional Roe v. Wade ruling federally protecting abortions.
Kaul quickly filed a lawsuit arguing the 1849 law conflicted with a 1985 law allowing abortions up until viability. It allowed abortions beyond viability if killing the unborn child would preserve the life or health of the mother “as determined by reasonable judgment of the woman’s attending physician.”
The liberal Dane County judge didn’t need Kaul’s argument in determining abortions were back on in the Badger State because, she opined, the 1849 law didn’t use the word abortion in outlawing killing the unborn.
But Kaul isn’t satisfied with his default victory. He wants the Wisconsin Supreme Court to provide a “definitive” ruling protecting abortion on demand — anytime, anywhere.
“This case is about protecting Wisconsinites’ freedom. The sooner we can obtain certainty about the state of Wisconsin law, the better,” Kaul said in a press release after filing his supplemental petition to move the appeal to the state Supreme Court. Kaul wants the state’s high court to legislate from the bench and declare in its ruling what Wisconsin’s Constitution doesn’t: that abortion is a constitutionally protected right.
Kaul’s claim is meritless on its face, said Luke Berg, counsel for the Wisconsin Institute for Law and Liberty.
“Not only does the text of the constitution not say anything about the right to an abortion but throughout the history of Wisconsin abortion has been prohibited at some level,” Berg said. “That this right has been secretly lurking in some portion of the constitution would be laughable if it wasn’t so serious.”
