MADISON, Wis. (AP) 鈥� A conservative prosecutor's attorney struggled Monday to persuade the Wisconsin Supreme Court to reactivate the state's 175-year-old abortion ban, drawing a tongue-lashing from two of the court's liberal justices during oral arguments.
Sheboygan County鈥檚 Republican district attorney, Joel Urmanski, has asked the high court to overturn a Dane County judge鈥檚 ruling last year that invalidated the ban. A ruling isn't expected for weeks but abortion advocates given that liberal justices control the court. One of them, Janet Protasiewicz, remarked on the campaign trail that she supports abortion rights.
Monday's two-hour session amounted to little more than political theater. Liberal Justice Rebecca Dallet told Urmanski's attorney, Matthew Thome, that the ban was passed in 1849 by white men who held all the power and that he was ignoring everything that has happened since. Jill Karofsky, another liberal justice, pointed out that the ban provides no exceptions for rape or incest and that reactivation could result in doctors withholding medical care. She told Thome that he was essentially asking the court to sign a 鈥渄eath warrant鈥� for women and children in Wisconsin.
鈥淭his is the world gone mad,鈥� Karofsky said.
The ban stood until 1973, when the U.S. Supreme Court's landmark Roe v. Wade decision legalizing abortion nationwide nullified it. Legislators never repealed the ban, however, and conservatives have argued the Supreme Court's decision to overturn Roe two years ago reactivated it.
Democratic Attorney General Josh Kaul filed a lawsuit . He argued that a 1985 Wisconsin law that prohibits abortion after a fetus reaches the point where it can survive outside the womb supersedes the ban. Some babies with medical help after 21 weeks of gestation.
Urmanski that the ban was never repealed and that it can co-exist with the 1985 law because that law didn鈥檛 legalize abortion at any point. Other modern-day abortion restrictions also don鈥檛 legalize the practice, he argues.
Dane County Circuit Judge Diane Schlipper that the ban outlaws feticide 鈥� which she defined as the killing of a fetus without the mother鈥檚 consent 鈥� but not consensual abortions. The ruling emboldened Planned Parenthood to resume offering abortions in Wisconsin after halting procedures after Roe was overturned.
Urmanski asked the state Supreme Court in February to overturn Schlipper鈥檚 ruling without waiting for a lower appellate decision.
Thome told the justices on Monday that he wasn't arguing about the implications of reactivating the ban. He maintained that the legal theory that new laws implicitly repeal old ones is shaky. He also contended that the ban and the newer abortion restrictions can overlap just like laws establishing different penalties for the same crime. A ruling that the 1985 law effectively repealed the ban would be 鈥渁nti-democratic,鈥� Thome added.
鈥淚t's a statute this Legislature has not repealed and you're saying, no, you actually repealed it,鈥� he said.
Dallet shot back that disregarding laws passed over the last 40 years to go back to 1849 would be undemocratic.
Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on in the state. The justices have agreed to take the case but haven't scheduled oral arguments yet.
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This story has been updated to correct the Sheboygan County district attorney's first name to Joel.
Todd Richmond, The Associated Press
