MILWAUKEE — A ruling from the nation's highest court last week on Roe v. Wade put Wisconsin's 1849 abortion ban back on the books. However, it's now up to a lower court to decide if it should stay that way.
From the same room at Turner Hall in Milwaukee, where just a few weeks ago he called a special session to repeal Wisconsin's abortion ban, Gov. Tony Evers was back Tuesday.
This time, he announced that the state's attorney general has been given the go-ahead to challenge the criminal abortion ban.
“We're taking this fight back to the court,” Gov. Evers told a room of supporters and Democratic lawmakers.
After promising to pardon anyone convicted by Wisconsin's 1849 abortion ban, and a vow from the state's justice department not to enforce the law in the first place, Democrats took their fight a step further.
“I've authorized Attorney General Josh Kaul to file a lawsuit today that is a direct challenge to Wisconsin's 1849 criminal abortion ban,” Gov. Evers said.
The state's top cop said there are two reasons he believes the 173-year-old law can't be enforced.
First, abortion can't be both legal and illegal at the same time.
“There are a series of laws that were passed, subsequent to Roe, that provide regulations for lawful abortions in Wisconsin,” Attorney General Josh Kaul said.
Secondly, Kaul argued that it has been too long since the law has been enforced, which is a legal concept known as “desuetude.”
“Wisconsin's criminal abortion ban has been unenforceable for more than 50 years,” Kaul explained. “Wisconsin actually had a decision that predates Roe that decided in 1970 that invalided Wisconsin's abortion ban, so for over 50 years abortion rights have been protected in Wisconsin.”
The complaint was filed in Dane County Circuit Court on Tuesday. However, an injunction to stop the 1849 law from being enforced while the suit makes its way through the legal system was not requested.
Kaul told reporters that's because his justice department is arguing abortion is legal right now, and he also expects the case to move very quickly.
Meanwhile, Republicans vowed to protect the law from 1849 and accused both Democrats, who face reelection in the fall, of breaking the law.
“Once again we will do Attorney General Kaul’s job and vigorously defend the law,” Assembly Speaker Robin Vos, R-Rochester, said in a statement. “It’s sad that Evers and Kaul want to break the law instead of work with the legislature. Abortion isn’t health care and for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v. Wade decision over 50 years ago. I’m confident our courts will see through their tactics and uphold the law.”