A Wisconsin judge on Thursday will hear arguments in a lawsuit challenging the state’s 174-year-old abortion ban, setting up a high-stakes courtroom showdown that could make its way to the newly reconfigured state Supreme Court.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit in June seeking to repeal the 1849 ban, arguing that it is from a bygone era and was adopted without public input. He also claimed that a newer state law enacted in 1985, which allows a woman to terminate her pregnancy up until a fetus can survive outside the womb, should supersede the older statute.
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The Supreme Court’s 1973 decision in Roe v. Wade established the constitutional right to an abortion. In June, the high court’s ruling in Dobbs v. Jackson Women’s Health Organization, a case that challenged a Mississippi law on the grounds that it violated Roe, overturned the 1973 decision and granted states the power to either allow or ban the procedure at any point during pregnancy, including at fertilization.
Since then, 19 states have moved to prohibit abortions completely or place heavy restrictions on access. According to the Guttmacher Institute, an abortion rights organization, that number is expected to grow significantly.
Following Dobbs, abortion became illegal in Wisconsin, including in cases of rape and incest, reverting the state back to the law passed in 1849.
Kaul initially sued state GOP legislators but later dropped them from the case, choosing instead to go after three district attorneys in an attempt to stop them from enforcing the century-old ban. Thursday’s hearing is specifically expected to center on Sheboygan County District Attorney Joel Urmanski, a Republican, who has threatened to prosecute anyone violating the ban. Urmanski has said he would also go after doctors and healthcare workers caught carrying out the procedure, with doctors risking six years in prison and thousands of dollars in fines if convicted.
Urmanski is expected to argue that the case should be dismissed because Kaul lacks standing to sue because the abortion ban doesn’t directly affect him. He has also pushed back on the argument that the law is too archaic, claiming laws don’t lose their power just because they are old.
It is unlikely that Circuit Judge Diane Schlipper will rule on the case Thursday, but she may indicate a time frame for when she will deliver her decision. It is almost guaranteed that Schlipper’s ruling will be appealed by whichever side falls short, and the case will most likely end up at the Wisconsin Supreme Court.
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Last month, liberals flipped the ideological makeup of the court in what was billed as the most expensive state Supreme Court race in U.S. history. Judge Janet Protasiewicz, who campaigned heavily on a woman’s right to choose, defeated conservative former Justice Daniel Kelly, giving liberals a 4-3 edge through at least 2025.
