Exclusive: Law Firm Challenges Democrat Wisconsin AG Claim That Abortion Is A Constitutional Right

As a defender of the murder of unborn children, Wisconsin Attorney General Josh Kaul is an all-star. When it comes to understanding the state Constitution, the Democrat is a bit of a dud. 

In the battle for life in the Badger State, Kaul has made an “extraordinary request,” a constitutional claim to the Wisconsin Supreme Court that a Milwaukee-based public-interest law firm argues defies the state Constitution. 

“He seeks to expand the scope of his own case while it is up on appeal — and to add a constitutional claim no less. Not just any constitutional claim, either. He hopes to transform this case into a vehicle to create a constitutional right to abortion in Wisconsin,” the Wisconsin Institute for Law and Liberty argues in a response filed late Tuesday in an appeal before the court. 

WILL’s clients are Wisconsin Right to Life, Wisconsin Family Action, and Pro-Life Wisconsin.  

Kaul makes the claim even though there is nothing in the Wisconsin Constitution that guarantees a right to abortion. There are, however, plenty of prohibitions against abortion in Wisconsin’s founding document and subsequent state laws. 

What’s important to note is that Wisconsin’s abortion industry defender has already won by losing in the leftist, Madison-based Dane County Circuit Court. Whether Kaul’s expanded argument will stand in the liberal-controlled state Supreme Court remains to be seen. 

‘Rife with Uncertainty’ 

The attorney general late last month took the unusual legal step of filing a supplemental petition asking the court to take jurisdiction over Kaul, et al. v. Urmanski, et al. Sheboygan County District Attorney Joel Urmanski appealed the earlier Dane County Circuit Court ruling that Wisconsin’s 175-year-old statute barring doctors from performing abortions in most cases doesn’t do that. Contrary to interpretations of the law enacted just after Wisconsin statehood, Judge Diane Schlipper found that “Wis. Stat. § 940.04 does not prohibit abortions.” The law only applies to infanticide, according to the interpretation of the judge, a former social worker and federal prosecutor. 

Following the U.S. Supreme Court’s landmark Dobbs v. Jackson Women’s Health ruling that found the U.S. Constitution does not guarantee the right to an abortion, Wisconsin’s long-dormant statute prohibiting abortion sprang back to life. It had been silenced for nearly 50 years following the 1973 unconstitutional Roe v. Wade ruling federally protecting abortions.  

Kaul quickly filed a lawsuit arguing the 1849 law conflicted with a 1985 law allowing abortions up until viability, or until an unborn child could survive outside her mother’s womb. It allowed abortions beyond viability if killing the unborn child would preserve the life or health of the mother, “as determined by reasonable medical judgment of the woman’s attending physician.” 

The liberal Dane County judge didn’t need Kaul’s argument in determining abortions were back on in the Badger State because, she opined, the 1849 law didn’t use the word abortion in outlawing killing the unborn. 

But Kaul isn’t satisfied with his default victory.  He wants the Wisconsin Supreme Court to provide a “definitive” ruling protecting abortion on demand — anytime, anywhere. 

“This case is about protecting Wisconsinites’ freedom. The sooner we can obtain certainty about the state of Wisconsin law, the better,” Kaul said in a press release after filing his supplemental petition to move the appeal to the state Supreme Court. 

Backed by abortion factory Planned Parenthood, Kaul wants the state’s high court to legislate from the bench and declare in its ruling what Wisconsin’s Constitution doesn’t: that abortion is a constitutionally protected right. 

“In addition to continuing to argue that Wisconsin law does not impose a near-total ban on abortions, we are asking the court to address the constitutional dimensions of the rights at stake,” Kaul said. “The Wisconsin Constitution includes clear commitments to securing liberty and equal protection under the law. A ruling that constitutional protection for reproductive freedom follows from those commitments would provide greater clarity to Wisconsinites about the rights they can count on in an area of the law that has been rife with uncertainty since Roe was overruled.”   

The Democrat is urging the Supreme Court to read into the state Constitution a protection that is not there after a lower court rescued abortion because the word “abortion” is not in the 175-year-old law. 

‘Inherent Rights to Life’

Kaul’s claim is meritless on its face, said Luke Berg, deputy counsel for the Wisconsin Institute for Law and Liberty. 

“Not only does the text of the constitution not say anything about the right to an abortion but throughout the history of Wisconsin abortion has been prohibited at some level,” Berg said. “That this right has been secretly lurking in some portion of the constitution would be laughable if it wasn’t so serious.”  

Even in the decades of Roe v. Wade, Wisconsin has had laws on the books regarding parental consent, waiting periods, and bans on partial-birth abortions, among other restrictions. 

The Wisconsin Institute for Law and Liberty is only seeking to intervene in the case to challenge Kaul’s attempt at raising a constitutional question that changes the breadth of the lawsuit, Berg said, noting that Kaul’s supplemental petition is unusual. 

“I’m not aware of any case like this,” Berg said, adding that there is plenty of case law advising attorneys not to do what Wisconsin’s attorney general has done. 

Kaul is simply standing in solidarity with Planned Parenthood, one of his more ardent and generous campaign supporters. The abortionists also recently filed a petition asking the Wisconsin Supreme Court to create an affirmative right to abortion. Planned Parenthood employs Kaul’s specious arguments. 

“There are these inherent rights to life, liberty, and the pursuit of happiness, and so it’s our theory that the right to life, the right to liberty necessarily includes the right to bodily autonomy, the right to self-determination, and therefore abortion care,” Michelle Velasquez of Planned Parenthood of Wisconsin, told Channel 3000 in Madison. It’s definitely an interesting twist on the “right to life.” 

‘A Question that Belongs to the Legislature’ 

The Supreme Court has yet to decide whether it will take either case, but there sure was a lot of abortion money spent to elect liberal Wisconsin Supreme Court Justice Janet Protasiewicz. Her victory gave the court a liberal majority (4-3) for the first time in 15 years. Planned Parenthood Advocates of Wisconsin dumped $562,244 into “mailings, postcards, canvassing, and radio and online ads” for the election, according to the left-leaning Wisconsin Democracy Campaign, which tracked a record $51 million in spending on last April’s judicial race. 

Protasiewicz signaled her liberal legal sentiments on the campaign trail on everything from what she described as “rigged” Republican-drawn legislative maps to her views on life issues. 

“I can’t make any specific comments as to what I would do when elected as a Supreme Court justice,” she said on Wisconsin Public Radio’s “Central Time” program mid-campaign.“What I have told people regarding the 1849 (ban): I have been very, very clear that my values are that women have the right to choose.”

“Protasiewicz added that her decisions will be based in constitutional law and not ‘right-wing partisan beliefs,’” Wisconsin Public Radio reported.

In its response, the Wisconsin Institute for Law and Liberty argues, “Constitutionalizing Abortion in Wisconsin Would Politicize the Court and Judicial Elections for Years to Come.” 

“Where to draw the line on abortion is a question that belongs in the Legislature — a body that is about to change dramatically due to the new maps,” the court filing states. “This Court should reject Kaul’s attempt to transform this case and constitutionalize abortion in Wisconsin.”

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Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.

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