Wisconsin prosecutors want abortion lawsuit tossed

Legal wrangling is likely just a pretext for an eventual hearing before the Wisconsin Supreme Court.

Updated: December 3, 2022 - 12:12am

Milwaukee, Madison, and Sheboygan district attorneys want a judge to dismiss Attorney General Josh Kaul’s lawsuit against Wisconsin’s abortion law.

The three prosecutors yesterday asked a judge to toss the case, saying Kaul shouldn’t be suing them.

Dane County District Attorney Ismael Ozanne and Milwaukee County District Attorney John Chisholm said Kaul’s lawsuit infringes on their prosecutorial discretion.

“[The attorney general] does not have the right or interest in controlling, usurping or directing [prosecutions]” Chisholm wrote.

Sheboygan County D.A. Joel Urmanski said in a separate argument that Kaul should be asking lawmakers to change the 1849 law, not the court.

“[The AG is] wrong when they claim a law no longer has the consent of the governed and must be reenacted when a prior decision (here, Roe and its progeny) holding the law unconstitutional is reversed by a subsequent decision (here, Dobbs),” Urmanski wrote. “Even after a court has determined a statute violates the Constitution, the statute nevertheless continues to exist unless and until it is repealed by the Legislature.”

Ozane asked the judge to dismiss the case, but also says Wisconsin’s 1849 abortion law should be changed.

“The confusion over which law is in effect has wreaked havoc on reproductive care in Wisconsin, with Wisconsin physicians bearing the brunt of the chaos as they struggle to make these health- or life-threatening distinctions day in and day out,” Ozanne wrote. “Months later, no clarity has emerged: the Legislature has twice refused to legislate any solution.”

Kaul filed his lawsuit not long after the U.S. Supreme Court struck down Roe v. Wade, and allowed Wisconsin’s near total abortion ban to go back into effect.

He initially wanted to sue Republican leaders in the legislature, but then change his lawsuit to focus on the prosecutors in the three counties where abortions used to be available in Wisconsin.

The legal wrangling is likely just a pretext for an eventual hearing before the Wisconsin Supreme Court.

Wisconsin’s Republican Assembly Speaker has suggested a compromise that would allow for abortions in cases of rape or incest. Gov. Evers has already stated he would not accept the compromise.

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