MADISON, Wis. — A group of prosecutors is asking a judge to toss out Democratic Attorney General Josh Kaul’s lawsuit challenging Wisconsin’s 173-year-old ban on abortions, arguing that it lacks legal merit and that there is no weight to assertions that it is unenforceable because of its age.
Dane County District Attorney Ismael Ozanne, Milwaukee County District Attorney John Chisholm and Sheboygan County District Attorney Joel Urmanski filed separate motions late Wednesday to dismiss the case. All three argued that the lawsuit seeks to improperly restrict prosecutorial discretion and that Kaul lacks standing to sue because he hasn't been personally harmed by the ban.
Urmanski, the only Republican among the three, went further, rejecting Kaul's argument that the ban is so old that it can no longer be considered to have passed with the consent of the people.
“Wisconsin courts have never recognized that a statute can lose effect through disuse and, even if they had, this case would not warrant application of that principle,” Urmanski wrote. “If the Plaintiffs believe the statute lacks the consent of the governed, their appeal should be to the Legislature and the Governor to seek changes in the law, not this Court.”
Kaul spokesperson Gillian Drummond didn't immediately respond to a message Thursday seeking comment. Dane County Circuit Judge Diane Schlipper has given all the parties in the case until Feb. 6 to file briefs expanding on their stances.
The case appears destined to end up before the Wisconsin Supreme Court. Conservative justices hold a one-vote majority on the court, but Democrats are banking on a progressive candidate winning the seat of retiring Justice Patience Roggensack in April’s election, giving liberals the edge. The longer the case drags on in the lower courts, the more likely it will come before the Supreme Court after the new justice takes the bench in August.
Kaul filed the lawsuit in Dane County in June days after the U.S. Supreme Court overturned Roe vs. Wade, the landmark 1973 ruling that legalized abortion nationwide. Wisconsin outlawed abortion except to save the mother’s life in 1849, but Roe v. Wade invalidated the statute. The reversal in June put the ban back into place.
Kaul argues in the lawsuit that Wisconsin adopted a post-Roe vs. Wade law in 1985 legalizing abortions before a fetus can survive outside the womb that supersedes the ban. The point of viability outside the womb is debatable. Some doctors say it’s around 20 weeks; others say it’s around 28 weeks. The attorney general also maintains that the ban is unenforceable because it’s so old that it was essentially passed without the consent of the people.
Kaul initially sued Republican legislators but dismissed them from the case in September after they argued they’re not responsible for enforcing the ban. He named Ozanne, Chisholm and Urmanski as defendants instead. Three doctors who care for pregnant women have since joined the lawsuit as plaintiffs.
Urmanski has said he plans to enforce the ban in his county. Ozanne and Chisholm have both said they will not prosecute abortions.
Ozanne, who operates in the most liberal-leaning county in the state, opened his filing by asking the court to find that newer statutes have superseded the ban. He then goes on to demand the judge dismiss the challenge, echoing the others' arguments that Kaul and the doctors haven't suffered any legal injury because of Ozanne's actions and that he enjoys immunity from legal challenges to his prosecutorial discretion.
