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Tough decisions about whether whether a woman's life or only her health would be endangered if she does not terminate her pregnancy does not invalidate the state's anti-abortion statute, Sheboygan County District Attorney Joel Urmanski argued in a state Supreme Court brief filed last week.
"Although there may be some abortions that present difficult questions regarding whether the life, as opposed to health, of the mother is at risk, or whether the fetus is a 'quick child,' such concerns involve application of the statute on the margins. 'Some uncertainty at the margins does not condemn a statute.' "
Women who are refused an abortion under the challenged law but believe they might die as a result of the denial can bring their own challenges or challenge specific situations, he argued.
Ormanski is arguing that Wis. Stat. 940.04, often referred to as the state's "1800s-era abortion ban," means that abortion is generally prohibited from the time of conception unless it is performed by a physician, is necessary to save the life of the mother, and is performed in a licensed maternity hospital unless an emergency prevents that.
Urmanski is named as a defendant in a lawsuit filed by Attorney General Josh Kaul in June, 2022. The suit argued that the prohibition cannot be enforced.
Plaintiffs in the original suit, besides Kaul, include the Wisconsin Department of Safety and Professional Services, Wisconsin Medical Board, physician Clarence Chou, and intervenor-plaintiffs Christopher Ford, Kristin Lyerly, and Jennifer McIntosh. (Planned Parenthood of Wisconsin filed a separate suit challenging the state's prohibition against consensual abortions.)
Dane County Judge Diane Schlipper ruled that the law, established when women did not have the right to vote, applied to feticide, not to abortions performed with the consent of the mother.
The Supreme Court allowed Urmanski and the other defendants in the case, Milwaukee County District Attorney John Chisholm and Dane County District Attorney Ismael Ozanne, to bypass the Court of Appeals.
Neither Chisholm nor Ozanne have filed Supreme Court briefs in the case.
Urmanski's brief, submitted by attorneys Andrew Phillips and Matthew Thome of the Attolles Law firm, said he has not taken a position "on what the law on abortion should be. That is an issue for the Legislature and governor."
"This case is not about to what extent abortion should be regulated as a matter of public policy," the lawyers wrote. "Urmanski does have an opinion on what the law currently is, however. Urmanski believes ... (the statute) ... prohibits performing abortions (including consensual abortions) from conception until birth" unless the life-of-the-mother exception applies.
"There really should be no dispute that a consensual abortion falls within the scope of the prohibition," Phillips and Thome wrote.
The state Supreme Court, before Roe v. Wade legalized abortion in 1973, upheld the convictions of abortion providers, the lawyers wrote, citing a 1968 case of a postal worker who, for $450, agreed to perform a consensual abortion. He inserted a catheter or small rubber tube with a guide wire into the woman's womb in an effort to induce the abortion. She became extremely ill and was admitted to the hospital. Doctors later determined the fetus was dead and removed it after the woman could not expel it herself.
Applying the statute only to feticide is appropriate only if a "grievous ambiguity" exists within the law so that the court has to guess at the statute's meaning, Urmanski's brief argued.
Finally, Phillips and Thome said, there is no basis to believe that the Legislature acquiesced in Schlipper's interpretation of the statute because there was no reason to believe the Legislature knew the law could be interpreted to not apply to abortion.
"As already discussed, several bills have been introduced in the last two decades that would have repealed Wis. Stat. § 940.04, but none have been enacted," they wrote. "In arguing that (the) abortion ban has been repealed, the state plaintiffs and physician intervenors are asking this Court for a result the Legislature has repeatedly refused to provide."
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