Gov. Evers and AG Kaul challenge Wisconsin abortion law

Published: Jun. 28, 2022 at 7:15 PM CDT
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EAU CLAIRE, Wis. (WEAU) - Governor Tony Evers and Attorney General Josh Kaul announced they will be filing a lawsuit to challenge Wisconsin’s 1849 abortion ban.

On Friday, the US Supreme Court overturned Roe v. Wade, leaving abortion access up to the states to decide. Abortions have been legal for over 50 years in Wisconsin, but with the Supreme Court decision, Wisconsin’s 1849 law criminalizing abortion is now in effect.

Kaul said there are two main arguments that are used in this lawsuit surrounding the age and enforceability of this law. The first argument states there are other abortion laws in Wisconsin that contradict the 1849 law.

“There are a series of laws that were past subsequent to Roe that provide regulation for lawful abortions in Wisconsin,” Kaul said. “Those statutes are directly inconsistent with Wisconsin’s 19th century abortion ban. It can’t be both legal and illegal to provide an abortion to protect the health of a mother.”

Kaul said usually the legally ruling is the statute that was passed more recently is the one that control, which would mean the old ban is invalidated.

The second argument surrounds the age of the law, stating because the ban not enforced for so long, it is no longer applicable.

“We’ve also argued that Wisconsin’s abortion ban has fallen into disuse and can no longer be enforced under Wisconsin law,” Kaul said. “There’s a legal doctrine known as desuetude that we argue applies here.”

Adam Kunz, UW-Eau Claire Assistant Professor, said these legal arguments are interesting.

“It definitely raises some of the things that I think a lot of us in the constitutional law community are asking,” Kunz said. “If a law has been around for 150 years and there’s been legal actions taken since then that all suggest that that law is not the thing the people want, then there’s good reason to kind of pump the brakes on whether or not that should be enforced.”

Kunz said he thinks there are a number of factors affecting abortion law in Wisconsin, but one in particular is especially strong.

“I definitely think over this next year, depending on how this election shakes out, that is what’s going to ultimately determining the future of at least abortion in Wisconsin,” Kunz said. “So, pay attention in November.”

There are a several notable positions up for election this November, including the governor, the attorney general, and various congressional seats.

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