Wisconsin Attorney General Josh Kaul is asking the Dane County Circuit Court to rule that current state law does not criminalize abortion — a critical legal step in the Department of Justice’s claim that the state’s current abortion ban from 1849 is too old to be considered actionable law.
Kaul filed the motion Monday, hoping to strengthen his case and speed up a court ruling on the abortion ban.
“In 1994, the Wisconsin Supreme Court held that a law prohibiting ‘[a]ny person, other than the mother’ from ‘[i]ntentionally destroy[ing] the life of an unborn quick child’ was not an abortion statute,” Kaul’s legal brief reads.
Kaul’s argument is this: that state law currently on the books applies to the act of “feticide,” not abortion. Feticide is understood to be an act of intentional violence toward a fetus, rather than a “therapeutic abortion” as Wisconsin law states.
The state’s lawsuit further argues that the 174-year-old ban no longer applies because of other laws passed over the last few decades that supersede the original abortion statute. Ultimately, the lawsuit seeks to clarify whether the ban itself can still be considered applicable law.
Last month, Dane County Circuit Judge Diane Schlipper used the same grounds to reject a motion from Sheboygan District Attorney Joel Urmanski to dismiss the state’s lawsuit, as Schlipper argued that the state’s pre-Civil War statute bans “feticide,” not abortion.
According to a press release from the state Department of Justice, Kaul’s motion requesting a ruling from Schlipper on the matter is just an extension of her previous rejection of Urmanski’s request to dismiss the lawsuit. As attorney general, Kaul oversees the Department of Justice.
The Department of Justice notes that the attorney general is “asking the Dane County Circuit Court to enter final judgment confirming what the court already recognized in its July ruling: that Wis. Stat. § 940.04 does not criminalize abortion.”
“Women should not be denied the freedom to make fundamental reproductive health-care decisions,” Kaul said in a statement. “Our filing today marks another important step in our fight to protect the freedom and safety of women in Wisconsin.”
Kaul told the Cap Times in an Aug. 1 statement that he is “confident” that the case will be “successful as the litigation moves forward.”
The case is expected to make its way up to the state Supreme Court, which now holds a 4-3 liberal majority that is seen as likely to rule in favor of tossing the ban.
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