Barring Republican wins in the race for Governor or Attorney General in November, it appears that courts will decide if abortion remains illegal in most cases here in Wisconsin. This week, AG Josh Kaul filed suit in Dane County Court to block enforcement of the law passed in 1849–but not enforced for the last 49-years due to the Supreme Court’s initial ruling in Roe v Wade, due to federal law superseding it.
Kaul makes some interesting arguments in his filing. One, that during the time Roe was in effect, the state Legislature enacted laws that regulated legal abortions in Wisconsin. Those laws remain on the books–therefore, the Attorney General argues, you cannot have laws that make the same act both illegal and legal. Secondly, Kaul argues that because the 1849 law was not enforced for 49-years, it cannot be enforced now. It’s a legal tenet called “desuetude”–which holds that because a law has not been enforced for so long that the action covered has become common behavior–people cannot be expected to abide by the law again when someone starts enforcing it.
I look forward to the legal back and forth that will be employed in this case. The “defendant”, by the way, is Senate President Chris Kapenga–meaning the Legislature will be defended by a taxpayer-funded attorney at all levels this case makes it to–and we already pay for all of the staff in the Attorney General’s office–so this will be a very expensive fight for all of us.
While on the surface, Kaul’s points seem pretty compelling. Surely, you cannot have laws that make something illegal and legal at the same time. But we do have laws on the books in Wisconsin that do that very thing. The number one example: opioids. Distribution and possession of opioids are both legal and illegal in Wisconsin. A pharmacist can legally sell you prescription painkillers and you can legally take them home and legally use them. But someone selling them out of his car in a parking lot for you to use without a prescription is illegal.
As to the Attorney General’s argument as to desuetude making the 1849 law unenforceable now, there are examples of Wisconsin laws that went years without enforcement due to a federal law superseding them. Prior to 1920, Wisconsin had laws on the books that regulated the production and sale of alcohol in the state. But in 1920, the 18th Amendment to the US Constitution was approved, and all production and sales of alcohol became illegal by federal mandate–that meant no one was enforcing Wisconsin’s liquor laws anymore. When that horrible mistake was rectified in 1933 by the approval of the 21st Amendment ending Prohibition, production and sale of alcohol became legal again.
While I have had just a couple of days to look into this, I am finding no reports of anyone claiming in 1933 that Wisconsin’s liquor laws were no longer enforceable because they had not been enforced for the preceding 13-years. I also find no accounts of the Legislature having to “re-pass” all of the laws. Nor can I find proof that local municipalities in this area had to recodify ordinances once the taps flowed again–even though it had become “regular practice” not to abide by them for more than a decade.
The unfortunate result of having to re-litigate existing legislation is that we are going to have a fairly-lengthy period where the law that is going to be enforced will change back and forth. You can all but guarantee that the Attorney General will win in Dane County Court. That will be followed by an order from the judge to not prosecute those that perform abortions–so the procedure will, in effect, be legal again. But that will be followed by an immediate appeal by the Legislature, who will ask the Appeals Court for an injunction blocking the Dane County judge’s ruling—which will likely be granted–making abortion temporarily illegal again. Then the Appeals Court will issue its ruling (can’t say for sure how that one will go) which could change the legal status of abortion again. Which will immediately be followed by an appeal to the state Supreme Court by the losing side–and a request for an injunction blocking the Appeals Court ruling from taking effect. Which will leave total confusion as to the legal status of abortion while the state justices take almost another year to decide the case.
And again, this is all dependent on Democrats remaining in control of both the Governor and Attorney General seats next January. GOP wins in either of those races in November will almost assuredly end all state-sponsored legal action in mid-process. Or a Republican win for governor would open the door for the Legislature to repeal all of the laws regulating legal abortion and amend the 1849 law with some modern language updates–taking the legs out from Josh Kaul’s case if he wins another term and tries to continue the lawsuits. (Although I’m guessing even the most hard-core pro-life Republicans in Madison would prefer to just hide behind the shield of the 1849 law rather than go on record with a vote on a new abortion ban.)
Is this the best way to decide important issues like this? Obviously not. But it is the path we have chosen. And there is plenty of precedent for it.
