Tony Evers, Josh Kaul file lawsuit challenging Wisconsin's 1849 law banning abortions, calling it unenforceable

Wisconsin Gov. Tony Evers and Attorney General Josh Kaul are challenging the state's 19th century state law banning most abortions in the wake of the overturning of Roe v. Wade with a new lawsuit that asks state courts to clarify whether the 173-year-old ban is still in place. 

The lawsuit was filed Tuesday in Dane County Circuit Court against Republican legislative leaders and argues the longstanding ban that had been unenforceable since 1973 under Roe v. Wade is still unenforceable because it conflicts with abortion measures state lawmakers have passed since. 

"I know many across our state and nation are scared and worried about their own health and the health and safety of their family members and friends," Evers said at a news conference in Milwaukee announcing the lawsuit. "Half the people in our state now have fewer rights than they did four days ago."

Joining the lawsuit as plaintiffs with Kaul are the Wisconsin Department of Safety and Professional Services and the Wisconsin Medical Examining Board.

Kaul said measures passed by Republican lawmakers setting restrictions on abortions under Roe v. Wade repealed the original abortion law. The effort faces an uphill battle under the Wisconsin Supreme Court, which is currently controlled by conservative justices. 

"The reality is that if the (19th) century abortion ban remains in effect, sexual assault victims in Wisconsin will be required under Wisconsin law to carry the rapist's baby to term without medical intervention. That is not a free society," Kaul said.

He said he believes the lawsuit will be successful despite the political makeup of the court because the challenge is "right on the law."

"Time is of the essence," Evers added. "Every day that we delay, waiting for a different Supreme Court or waiting for something else, that's a day that women in Wisconsin do not have access to reproductive health." 

Assembly Speaker Robin Vos ripped the lawsuit in a statement.

"Once again we will do Attorney General Kaul's job and vigorously defend the law. It's sad that Evers and Kaul want to break the law instead of work with the legislature," Vos said.

"Abortion isn't health care and for the governor and attorney general to try and use the courts to enact law is just wrong as the original Roe v Wade decision over 50 years ago. I'm confident our courts will see through their tactics and uphold the law." 

Republican lawmakers passed legislation in recent years under former Republican Gov. Scott Walker that ban abortions after five months of pregnancy and require women to receive an ultrasound before undergoing the procedure.

Since 1996, women seeking abortions also have been required to participate in counseling and wait 24 hours before undergoing the procedure. 

Some legal experts agree with Kaul and believe subsequent abortion statutes repealed the original 1849 law, but some conservative attorneys have disagreed. 

Under the state law, doctors could be charged with felonies for performing abortions and face up to six years in prison and $10,000 in fines. 

On Saturday, Evers announced he would grant clemency to anyone charged under the abortion ban and would not appoint state prosecutors who agreed to enforce the law. 

Evers called lawmakers into a special legislative session last week to repeal the state's longstanding abortion ban but Republican lawmakers swiftly rejected the call. 

"The people of Wisconsin were abandoned by the Supreme Court but they've also been abandoned repeatedly and willfully failed by Republican legislators who sat around and watched this happen in slow motion and didn't do a damn thing," Evers said Tuesday. 

Evers' Republican gubernatorial opponents have pledged to enforce and stand by the 1849 law and do not support providing more exceptions to the law, which currently only allows the procedures for women who will die without undergoing an abortion. 

"It’s insulting to hear Tony Evers and Josh Kaul tell Wisconsin women that they cannot have babies and be successful," Former Lt. Gov. Rebecca Kleefisch, who is running in a Republican primary for governor, said in a statement.

"Enforcing the law on the books isn’t difficult. Tony Evers’ lawsuit is nothing more than a sham to continue his long-standing history of lawlessness in Wisconsin."

Kaul's Republican opponents said the Democratic Attorney General was refusing to enforce state law by filing the lawsuit.  

"The Attorney General’s job is to uphold the law, not work to overturn it. This is simply another election year stunt to gin up the Democrats’ demoralized base," Former state Rep. Adam Jarchow said in a statement. 

"This is a political stunt with dubious legal standing by the attorney general and he should dismiss this lawsuit immediately," Fond du Lac District Attorney Eric Toney said in a statement. 

You can find out who your legislators are and how to contact them here.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.