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Wisconsin Attorney General Josh Kaul said Monday that he wants his lawsuit challenging the state’s 173-year-old abortion ban to move through the courts quickly, but it could be months before anything happens after defense attorneys signaled that they would try to turn it down next year.
The case will almost certainly end up in the Supreme Court. Conservative justices have a one-vote majority in the court, but Democrats are banking on a progressive candidate winning outgoing Justice Patience Roggensack’s seat in April’s election, giving Liberals an advantage. Looming delays in the abortion lawsuit make it likely that the case could end up in court after the new judiciary took over the bench in August.
Kaul, a Democrat, filed the lawsuit in June, days after the US Supreme Court ruled Roe v. Wade overturned the landmark 1973 ruling that legalized abortion nationwide.
The case has been in Dane County District Court for nearly five months, partly because Kaul released some Republican lawmakers as defendants in September and instead sued prosecutors in Dane, Milwaukee and Sheboygan counties. GOP lawmakers had said they weren’t real defendants because they couldn’t enforce the ban.
Prosecutors were due to file an answer to the lawsuit by last Friday, but they asked Judge Diane Schlipper to give them until Nov. 30 to respond to any motions to dismiss and until Feb. 6 for all parties to complete briefs on any requests for termination. Online court records show Schlipper consented. Once all briefs are filed, it could take the judge months to conduct a hearing and decide.
Doug Poland, an attorney representing Dane County District Attorney Ismael Ozanne, said Monday he expects at least one of the district attorneys to file a motion to dismiss and postpone the trial until spring. Sam Lieb, an attorney for Milwaukee District Attorney John Chisholm, and Andrew Phillips, Sheboygan District Attorney Joel Urmanski, did not immediately respond for comment.
After Roe was overthrown, it was difficult to suddenly have to interpret how laws from 1849 interacted with laws introduced after the 1973 decision on understanding abortion rights, Kaul said. The only exception to the abortion ban is to save the mother’s life.
Kaul said he wants to move the case forward “expeditiously” because the ban is preventing people from getting the health care they need. But he acknowledged that teaching such an unprecedented case would take time.
Poland said the public holidays contributed to the delay and that a long schedule is common in civil cases.
“It’s not that fast in court,” he said.
Kaul argues in the lawsuit that Wisconsin passed a post-Roe v. Wade law in 1985 legalizing abortions before a fetus can survive outside the womb, replacing the ban. The point of viability outside the womb is controversial. Some doctors say it’s around 20 weeks, others say it’s around 28 weeks.
Kaul also claims that the ban is unenforceable because it is so old that it was essentially enacted without popular consent.
Ozanne, a Democrat, has said he would not enforce the ban. Poland declined to comment on how that position would square with a motion to dismiss the case.
Chisholm, also a Democrat, has indicated he would not enforce the ban either. Urmanski, a Republican, has said he would push it through.