(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
 . . . . . . . . . .



Oral arguments scheduled in Wisconsin abortion case [1]

['Alexander Shur', 'Wisconsin State Journal', 'John Hart', 'State Journal Archives']

Date: 2023-04 

Oral arguments over whether to dismiss Democrats’ lawsuit challenging Wisconsin’s near-complete abortion ban are set for May 4, more than 10 months after Attorney General Josh Kaul first filed the case.

While the Dane County Circuit Court judge presiding over the lawsuit can rule from the bench that day, it’s possible that her decision on whether to allow the case to continue won’t come out until the summer, dragging the case out to the year mark.

Democrats filed the lawsuit days after the U.S. Supreme Court overturned Roe v. Wade, activating an abortion ban first passed in 1849, though it has been amended several times since then.

The future of this case and other abortion-related issues will likely be decided by the Wisconsin Supreme Court, which currently has a 4-3 conservative majority but could flip after Tuesday’s election between liberal Janet Protasiewicz and conservative Dan Kelly.

In January, Kaul asked a Dane County judge not to dismiss the lawsuit after one of the three district attorneys named as defendants, Sheboygan District Attorney Joel Urmanski, asked for the opposite.

Kaul’s lawsuit alleges that a 1985 abortion law — which prohibits abortions after fetal viability but includes an exception to protect the mother’s life or health — conflicts with the earlier, near-complete prohibition.

Kaul also alleges that the 1849 prohibition, which bans all abortions except those required to save the mother’s life, isn’t in effect because of a legal principle that laws may become unenforceable after a considerable period of disuse.

In December, Urmanski asked for a Dane County court to dismiss the case, saying the plaintiffs aren’t threatened by prosecution under the abortion ban they’re seeking to have a judge nullify. He also argued that the abortion laws Kaul mentioned do not, in fact, conflict.

Additionally, Urmanski said Kaul’s argument that the ban’s disuse means it lost its validity lacks merit.

“If the Plaintiffs believe the statute lacks the consent of the governed, their appeal should be to the Legislature and the Governor to seek changes to the law, not this Court,” he stated.

The other defendants, Milwaukee County District Attorney John Chisholm and Dane County District Attorney Ismael Ozanne, did not file motions to dismiss.

Attorneys representing Ozanne said Kaul’s claims don’t represent a controversy that the courts can resolve. They also argued that Kaul’s lawsuit improperly seeks to limit Ozanne’s prosecutorial discretion.

Responding to Urmansi’s dismissal motion in a brief filed in January, Kaul wrote that Wisconsin precedent shows that government officers, including the attorney general, have standing when an issue is “of vital concern ... to the entire public.”

Kaul added that to succeed on his motion to dismiss, Urmanski must prove there’s no way the lawsuit challenging the ban could succeed.

“He comes nowhere close,” Kaul wrote.

Kaul also wrote that Urmanski disputed his assertions of historical fact in his December response.

“Urmanski cannot prevail at the motion-to-dismiss stage by disputing Plaintiffs’ assertions of historical facts and presenting his own,” Kaul wrote. “His disputes instead demonstrate that his motion must be denied and Plaintiffs’ disuse claim must proceed.”

[END]
---
[1] Url: https://madison.com/news/local/govt-and-politics/oral-arguments-scheduled-in-wisconsin-abortion-case/article_fca466d1-2b0a-57ed-9845-cf295b949148.html

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/