The Wisconsin Supreme Court is expected to issue a decision on a major abortion case any day now. It’s a challenge brought by Democratic Attorney General Josh Kaul to an 1849 law that some say bans abortion in the state.
A trial court ruled that the 1849 law doesn't apply to abortions, but is instead a law that outlaws feticide. Feticide is when someone destroys a pregnant person’s fetus without their consent. Because of that ruling, abortion is currently available for up to 20 weeks in Wisconsin, or to save the health or life of the mother.
While the state Supreme Court’s decision is pending, there’s another abortion case from Planned Parenthood that hasn’t had oral arguments yet. It depends on the outcome of Kaul’s case.
For an update on the two cases, WUWM spoke with Bryna Godar, a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.
Kaul’s lawsuit
The court has already heard oral argument in the case of Kaul v. Urmanski. It will likely be issuing a decision soon, before July 31, the end of the Wisconsin Supreme Court’s 2025 term.
Godar says in this case, the court will decide the narrow question of how to interpret this statute from 1849, whether it’s been repealed by other laws since then, and whether there’s an abortion ban on the books in the state. In other words, it’s a case where the court will decide what this one statute means.
Planned Parenthood of Wisconsin lawsuit
This case is Planned Parenthood v. Urmanski, and it was filed separately and after the Kaul lawsuit was filed. “It argues that if [the 1849] statute is a ban on abortion, then it's unconstitutional,” says Godar.
In the Dobbs decision that overturned Roe v. Wade, the U.S. Supreme Court ruled that the U.S. Constitution doesn’t guarantee a right to an abortion. But the protections in the U.S. Constitution are the bare minimum that a state must provide, says Godar.
“So, it kind of sets a floor,” she says. “You can't, as a state, violate those federal rights but you can guarantee additional rights to residents of your state.”
Here, Planned Parenthood of Wisconsin is arguing that the Wisconsin’s Constitution’s right to life, liberty and the pursuit of happiness, as well as the Equal Protection clause, guarantee abortion access in this state—above and beyond the fundamental rights of the U.S. Constitution.
Planned Parenthood case hinges on what the court decides in Kaul case
“Courts just typically only decide issues when there's a "live controversy," when there's some actual dispute happening,” says Godar. “And if the court decides that this 1849 statute is not a ban on consensual abortions, then in the constitutional case, there's sort of no case anymore, because the way that that case was brought is by arguing that if the statute is a ban, then it's unconstitutional.”
Godar says if the court finds that the statute is not a ban, “The argument just kind of goes away. And so I think if the court knew that it was maybe going to rule this way ... then it makes sense that the court wouldn't put parties through the time and money of briefing and doing oral argument and all of those steps to then have the case just go away without a decision.”
What happens if the court finds that the 1849 statute is not a ban on abortion?
If the court rules the statute is not a ban on abortion, for the reasons the trial court gave or for the arguments that Kaul’s DOJ has made, Wisconsin won’t have a widespread ban on abortion in the state, says Godar. Wisconsin law could continue its status quo, which includes some key abortion restrictions, including a ban on abortion after 20 weeks except to save the life or health of the mother.
“But there's nothing to say that the Legislature couldn't enact a ban on abortion going forward without that sort of additional layer of a constitutional protection,” says Godar.
If the court rules that the 1849 statute is not a ban on abortion, what’s next for those who are making a constitutional argument?
“I think if the court rules that this isn't a ban, then the status quo will basically just sort of continue as is, but then we're still going to have this open question in the state over what, if any, protections are provided by the rights in the Wisconsin Constitution, whether those extend to abortion,” says Godar. “And I think what I would anticipate going forward is continued conversations and legal action on that front.”
She says that might look like a court case down the road, or it might look like efforts to get a constitutional amendment on the ballot in the state.
“In Wisconsin, we don’t have a way for citizens to initiate constitutional amendments. It has to be something that comes from the Legislature, and the current Legislature has not shown any desire to put a constitutional amendment on abortion on the ballot, but it is something that we could see with a future Legislature down the road,” says Godar. “And so, I think there will be continued conversations about what constitutional protections we have in Wisconsin.”
What could future constitutional cases look like?
If the state Supreme Court does not reach the question of whether the Wisconsin Constitution provides for a right to an abortion, Planned Parenthood, or other interested parties, would have to challenge other state statutes that regulate abortion, says Godar.
“And they would have to probably involve more factual gathering about the degree of burden that various current regulations on abortion in the state place on getting an abortion. And so those cases would look really different than challenging an outright ban,” she says. “And so, it's unlikely that Planned Parenthood could have brought that in sort of the same vehicle, or in the same way that it did in this case, but we very well might see something like that down the road challenging another law in the state.”
What if the court does find that the 1849 statute is a ban on abortion?
Urmanski is arguing that the statute does ban abortions in the state. According to Godar, “The arguments have sort of centered on the plain language of the statute, and sort of parsing what the statute says and the definitions in there and arguing that it's, this really widespread ban.”
Godar says that if the court were to rule that the 1849 statute bans abortions in Wisconsin, it could technically then stay that ruling —meaning put its effect on hold so that abortions can continue in Wisconsin — and order briefing and oral arguments in the Planned Parenthood of Wisconsin case to determine whether there’s a constitutional right to an abortion in the state.
If the court were to find there are broad protections for abortion in the Wisconsin Constitution, then the Wisconsin Legislature could not pass an abortion ban in the future, and the 1849 law would violate the constitution. Also, other laws in the state that relate to abortion could be evaluated under that new framework to determine whether they’re constitutional.
If the court were to find there aren’t broad protections for abortion in the Wisconsin Constitution, the 1849 ban could remain in place.
How does Wisconsin compare to other states?
“After the Dobbs decision, after Roe was overturned, there was a lot more clarity on the status of abortion in other states. In some states there was a really clear, outright ban on abortion. In some states there were really clear, robust protections for abortion,” says Godar. “And Wisconsin is among the states that has been in much more of this gray zone. And this case, about the 1849 statute, will help resolve some of that as to sort of what our current state of the law is, but it won't resolve this other lingering question about what rights are there under the state constitution.”
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