Justice Jill Karofsky appeared immediately opposed to attorney Matthew Thome’s proposed interpretation Wisconsin's 1849 law with regard to abortion. (Screenshot via Wiseye)

Several of the Wisconsin Supreme Court liberal justices appeared opposed to the enforcement of a 174-year old law when it comes to abortion during oral arguments Monday in a high-profile case meant to clarify law in the state.

Wisconsin abortion law has been unsettled since the U.S. Supreme Court overturned Roe v. Wade in 2022, sending decisions about abortion legality back to states. Health care providers in Wisconsin immediately ceased providing abortion care due to the state’s 1849 law. Attorney General Josh Kaul and Democratic Gov. Tony Evers filed a lawsuit challenging the statute in June 2022, arguing that it had been superseded by other laws passed by the state, including a ban on abortions after 20 weeks enacted in 2015, and could not be enforced as applied to abortions.

Access ceased for 15 months until a Dane County judge ruled in December 2023 that the law applies to feticide, not abortion, allowing providers to resume services. Sheboygan District Attorney Joel Urmanski, a defendant in the case, appealed the decision to the Wisconsin Supreme Court, and Kaul also wanted a review of the decision from the Court. Milwaukee County DA John T. Chisholm and Dane County DA Ismael Ozanne are also defendants in the case, but both oppose enforcing the law.

The pre-Civil War Wisconsin statute states that any person “other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony” and that any person who “intentionally destroys the life of an unborn quick child” is guilty of a Class E felony. It specifies that “unborn child” is defined as “a human being from the time of conception until it is born alive. It includes no exceptions for rape or incest or specific medical complications. The only exception for the law is the life of a mother.

Urmanski’s attorney, Matthew Thome, defended the enforcement of the statute Monday morning, saying lawmakers never repealed it. Republican lawmakers have proposed updates to the 1849 law in the last two years, including a 14-week abortion ban, but the proposals have failed to become law.

“Policymakers have not repealed it. Indeed, they have expressly declined to do so at multiple opportunities and until they do, it can be enforced,” Thome said.  

He argued that the question over whether Wisconsinites would be “better served” by a different law is not for the Court to decide. 

Justice Jill Karofsky appeared immediately opposed to Thome’s proposed interpretation of the law. 

“Just to be clear, a 12-year-old girl, who was sexually assaulted by her father, and as a result became pregnant under your interpretation [of the law], she would be forced to carry her pregnancy to term, correct?” Karofsky asked. 

“Under the policy choice the Legislature made…, that would be correct,” Thome said. 

“So in that case, a child would be forced to deliver a baby,” Karofsky said. 

Karofsky pushed the point, asking about the consequences of a victim of sexual assault seeking an abortion under the law if it were enforceable.  

“How about a woman who is a college freshman here at the University of Wisconsin-Madison? If she is sexually assaulted and it’s charged as a third degree sexual assault… that would be intercourse without consent. If she became pregnant, as a result of the sexual assault, it would be illegal for her to obtain an abortion?” Karofsky said. 

“Correct, it would be illegal for a doctor to provide an abortion to her in the state of Wisconsin,” Thome said.

“If her assaulter is charged…, he would be facing a 10-year maximum imprisonment because that would be a Class G felony,” Karofsky said. “In that case, the penalty for aborting, after a sexual assault, would be more severe than the penalty for the sexual assault.” 

A study published in the Journal of the American Medical Association estimates that since the Dobbs decision more than 64,000 pregnancies have been cause by rape in states with abortion bans.

“I fear what you are asking this Court to do is to sign the death warrants of women and children and pregnant people in this state because under your interpretation they could all be denied life-saving medical care while the medical professionals who are charged with taking care of them are forced to sit idly by,” Karofsky said. “This is the world gone mad.”

Justices also asked about the web of laws passed in the state, and appeared to disagree with Thome’s argument that the 1849 law completely negates them.

“We have statute after statute that you are somehow asking us to just absolutely ignore in your interpretation,” Justice Rebecca Dallet said. “We have a statute that talks about when an abortion can be performed and that’s after 20 weeks. We have a 24-hour waiting period. We have informed consent provisions. We have a ban on what they label to be partial birth abortion.” 

Dallet asked Thome how he reconciles the 1849 statute with the later statute passed in 2015 that prohibits abortion after 20 weeks and the other laws related to abortion. 

“I fit those things together… because that statute doesn’t say you can have an abortion,” Thome said. 

Justice Brian Hagedorn appeared to agree that the 1849 law applies to abortion, and said later laws don’t negate it. 

“It’s a matter of straight reasonable statutory interpretation,” Hagedorn said. “The law’s still there. It’s still there. The judiciary doesn’t get to edit laws. The judiciary doesn’t get to rewrite them. We didn’t delete it. We prevented its enforcement now, it’s still there.”

Wisconsin Assistant Attorney General Hannah Jurss, who represented Kaul, argued that there was an “implied repeal” of the 1849 law, when lawmakers passed other statutes regulating abortion access in the state. 

“The standard implied repeal rule is it’s the earlier law that falls and there’s nothing in the text of the Wisconsin statutes… that would say disregard all of that, and instead in the event of Roe being overturned go back to 940.04, and we know state Legislatures knew how to do this because… a number of states enacted trigger bans,” Jurss said. “Wisconsin did not.” 

Kaul said at a press conference following the arguments that the Legislature should take up some of the other laws related to abortion access in the state, no matter the outcome of the lawsuit. 

“There are now relatively narrow majorities for Republicans in the state Legislature,” Kaul said. The Assembly is now a 54-45 Republican majority, while the Senate is an 18-15 Republican majority. “It is very clear that Wisconsinites overwhelmingly support having safe access to abortion in the state. For those legislators in these districts that are very moderate, where those districts could go either way, I think we ought to ask those folks, do they support some common sense changes that will protect access to abortion care in Wisconsin.”

The Wisconsin Supreme Court has also agreed to hear a second lawsuit brought by Planned Parenthood of Wisconsin against Urmanski, which asks the Court to find that the state Constitution’s right to equal protection grants a right to receive an abortion and a doctor’s right to provide one.

Aiming to provide schools ongoing, predictable funding increases, Gov. Tony Evers struck two digits and a dash from the years to extend the annual increases through 2425. Evers signed the 2023-25 budget bill with 51 partial vetoes on July 5, 2023. (Baylor Spears | Wisconsin Examiner)

The Wisconsin Supreme Court heard arguments Wednesday in a case that challenges Gov. Tony Evers’ partial veto that extended school revenue increases for 400 years and questions the limits of expansive power.

The lawsuit challenging the partial veto was brought by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby group, and two Wisconsin taxpayers, Jeffery A. LeMieux, a retired professor, and David T. DeValk, a Fox Valley substitute teacher. 

The case centers on a partial veto that Evers exercised in the 2023-25 budget. Lawmakers included a $325 increase to schools’ revenue limits for the 2023-24 and 2024-25 school years in the budget when it was sent to Evers. Aiming to provide schools ongoing, predictable funding increases, Evers struck two digits and a dash from the years to extend the annual increases through 2425.

Scott Rosenow, an attorney for WMC, argued that the Court should strike down Evers’ veto. 

“This 400-year veto approaches the absurd and this partial veto power is corrosive to democracy,” Rosenow said, referencing the brief submitted to the court by Richard Briffault, a Columbia Law School legal scholar.

Briffault argued in the brief that allowing veto “creativity” would “further depart from the Constitution’s text, history and structure and its core democratic commitments” and would make Wisconsin an outlier among states with partial veto powers. 

Rosenow argued that the veto exceeded the partial veto power established under the state Constitution and created a new word.  

“The governor here did not merely delete text. He selectively struck words, digits and a dash to create a new word, so what he did was not like a digit veto that reduces an appropriation by striking a single digit, he created a new word and a new 400-year duration that wasn’t there,” Rosenow said. 

Wisconsin has had one of the broadest partial veto powers in the country, though it has been curtailed over the years by constitutional amendments and rulings by the state Supreme Court.

The ‘Vanna White’ veto, which was used by former Gov. Tommy Thompson to strike individual letters to create new words, was eliminated in 1990 by a constitutional amendment. The Legislative Reference Bureau defines this type of veto as striking “phrases, digits, letters, and word fragments so as to create new words, sentences, and dollar amounts.” The language approved by the constitutional amendment stated: “In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” 

Some of the justices appeared skeptical about the argument that Rosenow was making, saying that the amendments advanced by lawmakers and adopted by voters didn’t specify digits.

“Equally absurd to me is your argument that a letter is a number or vice versa, that a number is a letter…. A fourth grader or dare I say a four-year-old knows the difference between letters and numbers,” Justice Ann Walsh Bradley said. “My response is almost visceral that I don’t care how many fancy words or legal theories you put behind it to make it sound like its erudite four is not a letter of the alphabet.” 

Evers’ attorney, Colin Roth, argued that while the veto did extend the date by a significant amount of time, it didn’t violate any previous cases decided by the Court and that it led to “complete and workable law,” a requirement of partial vetoes established under previous case law.

Justices expressed concerns about whether the power continues to be too broad. 

“I think that there is concern that now, we’ve got this 402-year veto. It does feel like the sky’s the limit, and perhaps today, we are at that fork in the road, and… we’re trying to think, like, should we today in 2024 start to look at this differently?” Justice Jill Karofsky said.

Roth argued, however, that lawmakers have tools to address the limits of the governor’s ability to shape law, including by passing constitutional amendments and writing legislation in different ways. 

“To the extent, your honors do have substantive concerns about the scope of the veto power, those can be addressed in multiple ways. One, a constitutional amendment, it’s not impossible. It’s happened twice. Both times the Legislature has put it to a vote, it’s passed,” Roth said. A second constitutional amendment adopted in 2008 banned the “Frankenstein” veto, where governors would create new sentences by combining parts of two or more sentences. “There’s one in the hopper right now… that would expressly ban this kind of veto.”

Republican lawmakers, who support the lawsuit, were furious about the partial veto, and in response unsuccessfully attempted to override the veto and started the process of passing a constitutional amendment that would limit the power further by prohibiting vetoes that would increase taxes or fees.

Justice Brian Hagedorn, referring to the partial veto power, said that legal scholars “think it’s crazy because it is crazy.”

“We allow governors to unilaterally create law that has not been proposed to them at all. It is a mess of this court’s making, and our body of cases is inconsistent,” Hagedorn said. “We have a choice to either green light governors unilaterally creating policy in an even more expansive way than we’ve done before or whether we are going to begin to take steps… and begin to rein [it] in.”