State Appeals Court Could Next Decide If Abortion Legal

Protesters gather to express opposition to the Supreme Court’s decision to overturn Roe vs. Wade on Friday, June 24, 2022, in Madison, Wis. Angela Major/WPR

Sheboygan County District Attorney Joel Urmanski is appealing a recent ruling from a Dane County judge that allowed abortions to proceed in Wisconsin. The move brings a Wisconsin law from 1849, which has been interpreted as banning abortion, closer to Wisconsin Supreme Court and its new liberal majority.

Urmanski filed a notice of appeal with Wisconsin’s second district Court of Appeals on Tuesday. He’s asking the court to overturn a Dane County judge’s determination earlier this month that the 1849 law does not apply to consensual abortions. That ruling determined the law applies only to feticide, in which someone attacks a pregnant person and ends the pregnancy. He is also seeking an answer from the appeals court on whether the law is unenforceable.

He is seeking to have the case heard in the state’s Waukesha-based 2nd District Court of Appeals. Three of the four judges in that district are conservatives.

The Dec. 5 ruling from Dane County Circuit Court Judge Diane Schlipper came in response to a lawsuit from Democratic Wisconsin Attorney General Josh Kaul who sought to block prosecutions of abortion providers under the 1849 law. Kaul has argued the pre-Civil War legislation has been superseded by more recent abortion regulation in the state.

“Reproductive health care decisions should be made by women, not by the government,” Kaul said in a Wednesday statement. “As this case moves forward, we will continue standing up for access to safe and legal abortion in Wisconsin.”

In a statement, Planned Parenthood of Wisconsin Chief Strategy Officer Michelle Velasquez said decisions in the case “have confirmed that there is no criminal abortion ban in Wisconsin.”

“DA Urmanski has repeatedly recognized that the Legislature and Governor should enact laws,” Velasquez said. “Yet, by appealing, DA Urmanski seeks to have a Court invalidate numerous modern laws governing abortion and reanimate a 19th century criminal abortion ban, taking away people’s abilities to make decisions about their own lives and futures.”

Wisconsin Right to Life Legislative Director Gracie Skogman told WPR the group shares concerns with the Dane County decision and the group believes the 1849 law “should be in effect and should be enforced here in our state.”

“It’s important to remember that this law was in effect in our state for many, many decades prior to the 1973 Roe determination,” Skogman said. “And it continues to be our understanding that it should be in effect today.”

Abortions resume in Wisconsin, restrictions still apply

Providers around Wisconsin stopped performing elective abortions last June following the U.S. Supreme Court ruling overturning Roe v. Wade, concerned about the possibility of being criminally charged under the 1849 law. In September, following an earlier ruling from Schlipper that foreshadowed her decision on the suit, Planned Parenthood of Wisconsin resumed abortion services in Milwaukee and Madison. The organization says those services will resume in Sheboygan Dec. 28.

While abortion services have resumed in the state, abortion restrictions still exist in Wisconsin. Those include a ban on abortions after 20 weeks of pregnancy and a 24-hour waiting period between a consultation with an abortion provider before receiving the procedure or medication. State Medicaid funds are also prohibited from covering abortion services in virtually all cases.

Case likely headed to Wisconsin Supreme Court

Regardless of how the state appeals court rules on the case, that decision is likely to be appealed to the Wisconsin Supreme Court and its new 4-3 liberal majority. The overturning of Roe v. Wade at the federal level was a top issue for Democrats during the spring Wisconsin Supreme Court Election, which resulted in liberal Justice Janet Protasiewicz defeating former conservative Justice Daniel Kelly by 11 percentage points.

On the campaign trail, Protasiewicz shared personal values, including “that a woman should have a right to choose and make her reproductive healthcare decisions,” but said she has “no predetermined decisions on how any case regarding the 1849 ban is going to turn out.”

Dane County judge ruling that abortions are legal in Wisconsin is appealed was originally published by Wisconsin Public Radio.