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Wisconsin prosecutor appeals judge’s ruling claiming 1849 state law doesn’t ban abortion

by | Jan 4, 2024

Judge Diane Schlipper ruled that Wisconsin Statute 940.04 doesn’t mean what it plainly says

By Calvin Freiburger

MADISON, Wisconsin– Sheboygan County District Attorney Joel Urmanski filed an appeal of a ruling that declared abortions may resume in Wisconsin despite a longstanding and never-repealed law criminalizing abortion being cleared for enforcement by the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade.

When the nation’s highest court handed down its Dobbs ruling, finding no constitutional right to abortion and recognizing states’ ability to set their own abortion policies for the first time in half a century, it effectively reactivated scores of state pro-life laws across the country. Among them was Wisconsin Statute 940.04, a law dating to 1849 that makes it a felony for an abortionist (but not a pregnant mother) to commit an abortion for any reason other than to save the mother’s life. Wisconsin Democrat Gov. Tony Evers threatened to give clemency to any abortionist prosecuted under the law, and Democrat Attorney General Josh Kaul said he would not prosecute anyone who violates it. But the threat of the law being enforced by lower levels of government has still gotten Planned Parenthood of Wisconsin to suspend abortions until the legal landscape changed. It also filed a legal challenge to the law, claiming that modern state laws effectively canceled it out and that it was too old to have the consent of current Wisconsinites (a premise that, if adopted, would have drastic ramifications for all corners of U.S. law).

In July, Dane County Circuit Judge Diane Schlipper ruled that the 1849 law, which explicitly prohibits “intentionally destroy[ing] the life of an unborn child,” was not actually an abortion ban because its language did not specifically use the word “abortion” (despite the word appearing elsewhere in the law), and only applies to violence against pregnant women that happens to harm their babies. Planned Parenthood of Wisconsin resumed committing abortions in in September.

“To rule that all of s.940.04 has nothing to do with a consensual, medically induced abortion defies the plain wording and meaning of the statute. It is an extraordinary leap in logic,” Pro-Life Wisconsin legislative director Matt Sande responded [https://www.prolifewi.org/12052023-dane-county-judge-rules-1849-abortion-ban-applies-only-to-feticide]at the time. “After all, the statute itself is entitled ‘Abortion,’ it makes an exception for a ‘therapeutic abortion’ to ‘save the life of the mother’ that is ‘performed by a physician’ and ‘(u)nless an emergency prevents, is performed in a licensed maternity hospital.’”

Urmanski filed a notice of his intent to appeal Schlipper’s ruling to the more conservative Second District Court of Appeals, Wisconsin Public Radio reported.

“It is my view that, properly interpreted, the statute at issue prohibits performing abortions (including consensual abortions) unless the exception for abortions necessary to save the life of the mother applies,” he said. “My position in this case is guided by my understanding of the law, not my own personal values or preferences.” 

“Although that petition has not yet been filed, I expect it will be in the coming weeks and I hope that our Supreme Court will take this case,” he added. “I believe it would be in the best interests of the State as a whole for this issue to be considered and resolved by our Supreme Court immediately.”

Fifteen states currently ban all or most abortions, with available data so far indicating that now-enforceable pro-life laws could effectively wipe out an estimated 200,000 abortions a year.

In response, abortion allies pursue a variety of tactics to preserve abortion “access,” such as easy access to abortion pills, legal protection and financial support of interstate abortion travel, attempting to enshrine “rights” to the practice in state constitutions rather than the U.S. Constitution, constructing new abortion facilities near borders shared by pro-life and pro-abortion states, and making liberal states sanctuaries for those who want to evade or violate the laws of more pro-life neighbors. 

President Joe Biden has called on Congress to codify a “right” to abortion in federal law, which would not only restore but expand the Roe status quo by making it illegal for states to pass virtually any pro-life laws. The 2024 elections will determine whether Democrats retain the White House and keep or gain enough seats in Congress to make that happen.

Editor’s note. This appeared at Life Site News and is reposted with permission.

Categories: State Legislation