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WI AG Says He Won’t Enforce 172-Year-Old Abortion Statute If “Roe” Is Upended

The abortion statute in the state hasn’t been enforced since “Roe v. Wade” was decided 48 years ago.

The Wisconsin State Capitol is pictured in December 4, 2018, in Madison, Wisconsin.

Wisconsin Attorney General Josh Kaul will not enforce an abortion statute in the state that is set to return if abortion rights are undone by the federal Supreme Court next year.

The High Court is set to rule on whether to uphold abortion protections that were established in the 1973 Roe v. Wade decision. Deliberations earlier this month in a case seeking to dismantle Roe indicated that conservative members of the Court were prepared to curtail or eliminate entirely the nearly 50-year-old landmark decision and the protections it afforded.

If Roe is upended, more than 20 states in the U.S. are set to prohibit or severely restrict abortion access in their jurisdictions. Wisconsin is one of them, as the state still has an 1849 statute on the books that completely prohibits abortion. Anyone who provides abortion services in the state can be fined up to $10,000 or sentenced for up to six years in prison under the law, which hasn’t been enforced since Roe was decided.

In an interview with The Associated Press that was published this week, Kaul, who was elected to his post in 2018, said that he would not investigate or prosecute anyone in Wisconsin for having an abortion, should the Supreme Court overturn abortion protections.

To what extent Wisconsin’s 172-year-old law on abortion would be enforceable would depend on the Supreme Court’s final ruling on the matter. But even if the state’s law from 1849 returns in full force, Kaul said he wouldn’t pursue any charges at the state level if it is violated.

“Even if courts were to interpret that law as being enforceable, as attorney general I would not use the resources of the Wisconsin Department of Justice either to investigate alleged violations of that abortion ban or to prosecute alleged violations of it,” Kaul said.

Kaul justified his opinion by saying his office is focused on more important crimes, like homicide and sexual assault.

“Diverting resources from those important cases to the kinds of cases that could be brought under abortion ban, which I also believe to be unconstitutional, is not something that I would do as attorney general,” he said.

Enforcement of the state’s law would “result in serious negative health consequences, including potentially the death of women who wanted to seek to exercise what for nearly 50 years been understood to be a constitutionally protected right,” Kaul added.

Nonbinary people, trans men and other people who do not identify as women and can get pregnant would similarly be at risk if abortion was criminalized.

Wisconsin is already a highly restrictive state, when it comes to abortion access. In order for a person to obtain an abortion, they must pass through many hoops first.

For example, a person must receive state-directed counseling, which includes propaganda meant to discourage someone from having an abortion. They must then wait at least 24 hours after that counseling occurs before they’re allowed to return to a clinic. A person must also undergo an ultrasound before having an abortion, with the provider showing and describing the ultrasound image to the patient before an abortion procedure can happen.

Kaul’s statement, while admirable, may not matter for many places in the state, as county-level district attorneys could still use the 172-year-old statute to prosecute abortion providers in their areas, the AP reported.

Wisconsin residents, by-and-large, don’t want abortion access to be curtailed. A Marquette Law School poll in late October, for instance, shows that most are opposed to the spirit of the 1849 law, with 61 percent of residents saying they want abortion to be legal in all or most cases, and only 34 percent saying they want the procedure to be illegal.

Kaul is up for re-election next year, at a time when many predict that abortion rights will become a main issue in midterm races, depending on how the Supreme Court rules next summer. Kaul won his election three years ago by a slim margin, defeating the incumbent Republican candidate, former Attorney General Brad Schimel, by just 0.8 percent (or less than 20,000 votes).

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