Judge hears arguments over Wisconsin's abortion ban

MADISON, Wis. (CBS 58) -- A Dane County judge heard the first arguments in an abortion lawsuit Thursday, the next step in what's expected to be a prolonged legal fight in Wisconsin over reproductive rights.

Dane County Judge Diane Schlipper weighed a motion by a Republican prosecutor who is seeking to toss out Attorney General Josh Kaul's challenge to the state's 1849 near-total abortion ban.

An attorney for Sheboygan County District Attorney Joel Urmanski urged Schlipper to dismiss the case arguing that a newer and less restrictive law from 1985 complements the 1849 ban rather than supersedes it, which is what Kaul maintains.

Kaul's legal team argued the 1849 law is outdated and is too old to enforce. They also believe both laws conflict with one another.

Schlipper did not rule for the bench nor indicate when a decision will be made, but the arguments set the tone for what's likely to come before the state Supreme Court. In August, liberals will hold a 4-3 majority when incoming Justice Janet Protasiewicz will take the oath of office. During her campaign, Protasiewicz openly expressed her support for reproductive rights - an usual step in a judicial race.

Urmanski, who has vowed to prosecute doctors that perform abortions unless a pregnant individual's life is at risk, is one of three district attorneys named in the suit.

Kaul first filed the lawsuit last year against top Republicans, but then changed course to target Dane, Milwaukee and Sheboygan County because each county used to provide abortion services before Roe v. Wade was overturned.

Urmanski’s lead attorney, Matthew Thome, first argued that Kaul lacks the legal standing to challenge the ban because it doesn’t affect his ability to perform his duties as attorney general.

Kaul’s argument that the ban is so old it’s unenforceable is a “stretch,” Thome added. Laws don’t vanish from the books, and the only reason the ban wasn’t enforced was that the original 1973 Roe v. Wade decision blocked it, he said.

Assistant Attorney General Hannah Jurss maintained that the ban clearly conflicts with modern-day laws that permit abortion in some circumstances, creating confusion that only a judge can clarify. Kaul has legal standing because he’s Wisconsin’s top law enforcement official, and he needs to know what laws apply in the state, she said.

The Associated Press Contributed to this report.