Wisconsin Supreme Court Agrees to Hear 2 High-Profile Abortion Lawsuits

The Wisconsin Supreme Court has accepted two high-profile abortion lawsuits, one arguing that the state constitution protects a woman’s right to an abortion, and the other challenging a pre-Civil War law that was long considered to ban the procedure.

The lawsuits were filed by Planned Parenthood of Wisconsin and Democratic Attorney General Josh Kaul and raise separate legal issues that arose after the U.S. Supreme Court on June 24, 2022, struck down federal abortion protections.

Abortion providers in Wisconsin stopped providing abortion services for more than a year after the U.S. Supreme Court ruling, citing a state law originally enacted in 1849. That changed last year when a Dane County Circuit Court judge ruled the law did not prohibit voluntary medical abortions. Planned Parenthood of Wisconsin resumed abortion services at clinics in Milwaukee and Madison, and later resumed abortion services in Sheboygan County.

Republican Sheboygan County District Attorney Joel Urmanski has vowed to appeal the decision to the state Supreme Court, a move that the liberal majority of justices accepted on Tuesday.

While the case was being argued, four liberal justices joined conservative Justice Brian Hagedorn in denying motions by Wisconsin anti-abortion groups to intervene. Conservative Justice Rebecca Bradley and Chief Justice Annette Ziegler dissented, with Bradley writing that the majority’s “astonishing reluctance to consider the pro-life position in this case will only erode what remains of public confidence in the legitimacy of any decision the majority makes in this case.”

Planned Parenthood’s lawsuit has been called “most troubling” by anti-abortion groups because if a majority of the justices rule that the Wisconsin Constitution protects a woman’s right to medication abortion services, it could open the door to future lawsuits seeking to overturn abortion restrictions.

These include a ban on abortion after the 20th week of pregnancy, a 24-hour waiting period after a woman’s first visit to a doctor before using abortion services or taking medication, and a mandatory ultrasound scan before an abortion procedure.

In the ruling to accept the Planned Parenthood case, liberal and conservative justices clashed with each other, with conservatives again accusing the liberal majority of meddling in politics, while liberal justices accused their conservative colleagues of hypocrisy.

Justice Rebecca Bradley said the liberal majority’s attempt to remove the abortion issue “from the democratic process” demonstrates “a grave disrespect for the sovereignty of the People.”

“This should be left to the people to decide through a democratic process designed to decide these types of political issues, with vigorous debate accompanying the legislative process,” Bradley said.

Bradley and Ziegler have accused liberals, including Judge Janet Protasiewicz, of preempting the case. Abortion rights were a centerpiece of Protasiewicz’s successful campaign against conservative former Judge Dan Kelly last year.

“Janet Protasiewicz has peppered her campaign rhetoric with allusions to her ‘values’ on abortion, giving her financial backers a sense of how she will rule in abortion cases,” Bradley wrote.

Bradley then cited sections of the Wisconsin Code of Judicial Conduct regarding recusing judges from a case.

Liberal Judge Jill Karofsky accused Bradley of engaging in “ad hominem attacks that would be more appropriate in an unfortunate, late-night social media tirade than a court filing.”

“How can Judge Rebecca Grassl Bradley have the right to criticize a colleague for signaling her values ​​during the campaign when she herself did so,” Karofsky said. “How can she seek to disqualify one of her colleagues when she voted against a stronger disqualification rule while in the majority? And how can she complain that the court granted an original petition when she has also voted to grant original actions on controversial constitutional issues in the past?”

In his dissenting opinion, Judge Hagedorn described abortion as one of the liberal majority’s “pet issues.”

“In such politically charged cases, it is all the more important that we act as a court and not favor anyone,” Hagedorn said. “How disappointing it is that when the majority tests, they do not apply the same rules to everyone.”

Karofsky called Hagedorn’s comment about “pet issues” “more disturbing” than Bradley’s attacks.

“Regardless of one’s views on the morality, legality or constitutionality of abortion, it is undeniable that abortion regulation is an issue of profound personal and practical importance to many Wisconsinites,” Karofsky said. “Characterizing and reducing abortion to a ‘pet issue’ is rude, demeaning and mocking to adults and children affected by abortion laws and litigation.”

Reactions to the Supreme Court’s orders were swift.

Legal counsel Luke Berg of the conservative Wisconsin Institute for Law and Liberty said the abortion issue should be decided through the legislative process, not the courts.

“No judge, justice or lawyer should be making policy for the people of Wisconsin out of thin air — yet that is exactly what is happening now,” Berg said. “The Wisconsin Supreme Court is making a historic mistake by even considering an original action in this case.”

In January, Assembly Republicans introduced a bill that would ban abortions after 14 weeks of pregnancy if it also passed a state referendum. The bill passed the Assembly but never passed the state Senate.

Planned Parenthood of Wisconsin took to social media to celebrate the court’s decision to hear the case.

“In the face of ongoing attacks on abortion, as well as other forms of sexual and reproductive health care such as contraception, gender-affirming care, and in vitro fertilization, protecting access to abortion and establishing protections for bodily autonomy are essential to ensuring everyone has the ability to make decisions about their reproductive health and life,” the organization wrote.

Wisconsin Right to Life Legislative Director Gracie Skogman called the liberal justices’ decision to take up the Planned Parenthood case “using the court system to guarantee access to abortion at the behest of radical abortion advocates.”

Legal briefs in the case challenging the 19th-century law must be filed within 40 days of the court’s order. A trial schedule for the Planned Parenthood case has not been set.

While Monday’s order was significant, it wasn’t entirely unexpected. A draft of the order was published last week, prompting the court to order an investigation into who leaked it.