Evers, Kaul filing challenge to Wisconsin’s criminal abortion ban in wake of Supreme Court ruling

MILWAUKEE — Gov. Tony Evers and Attorney General Josh Kaul announced Tuesday they are filing a lawsuit as a “direct challenge” to Wisconsin’s pre-Civil War criminal abortion ban.

Tuesday afternoon’s announcement in Milwaukee comes days after the U.S. Supreme Court overturned the landmark Roe v. Wade case that legalized abortion rights nationwide.

“Our message to Wisconsinites is this: We will never stop fighting to make sure that every single Wisconsinite has a right to consult their family, their faith and their doctor to make the reproductive healthcare decision that’s right for them, decisions that should be made without interference from politicians or members of the Supreme Court who don’t know anything about their life circumstances, their values and their responsibilities, period,” Evers said during a news conference.

The 20-page lawsuit, a copy of which the governor’s office sent out following the announcement, argues Wisconsin has “two sets of criminal laws” — one pre-Roe and one post-Roe — that “directly conflict with each other if both are applied to abortion.”

“Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity,” it reads. “This Court should hold that Wis. Stat. § 940.04 has been superseded and cannot be enforced as applied to abortions.”

Kaul said since Friday’s high court ruling, his office has been receiving questions from sexual assault nurse examiners about whether they can give out emergency contraception.

“The reality is that if that… 19th-century abortion ban remains in effect, sexual assault victims in Wisconsin will be required under Wisconsin law to carry their rapist’s baby to term without getting medical intervention,” he said. “That is not a free society. Women in Wisconsin deserve better.”

During the Democratic Party of Wisconsin’s convention in La Crosse over the weekend, Evers said he would grant clemency to abortion providers prosecuted under the ban. Kaul previously said his office would not use its resources to enforce the law.

“Minimizing the harm isn’t enough,” Kaul said. “We need to do much, much more.”

Three of the Republican candidates hoping to unseat Evers this fall said during a debate Monday they would remove district attorneys who don’t enforce the ban. In a statement Tuesday after the announcement from Evers and Kaul, Republican candidate Rebecca Kleefisch again called on them to enforce the law as written.

“Enforcing the law on the books isn’t difficult,” Kleefisch said. “When I’m governor, I will stand for law and order and enforce Wisconsin’s current law that protects the unborn.”

Assembly Speaker Robin Vos also released a statement after the lawsuit was announced, claiming Evers and Kaul should have worked with the legislature instead of filing a lawsuit. Evers called a special session last week in hopes of updating the state’s abortion law, but both the Republican-controlled state senate and assembly gaveled out of the session within seconds without taking any action or holding debate.

“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,” Vos said. “I’m confident our courts will see through their tactics and uphold the law.”

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In a statement following the announcement, Planned Parenthood of Wisconsin praised the move.

“The person who is pregnant should be the one to make the deeply personal, moral, and ethical decision based on their life circumstances whether to continue or terminate their pregnancy – not an archaic law written at a time when women could not vote or hold elected office,” Dr. Kathy King, the group’s medical director, said. “The Attorney General’s actions today are on behalf of all of the patients I and my colleagues at PPWI serve.”