In brief:
The case: Kaul v Urmanski
Case no.: 23AP2362
Filed in: Wisconsin Supreme Court (on bypass, skipping the Court of Appeals)
Circuit Judge: Dane County Circuit Judge Diane Schlipper
Filing Attorneys: Hannah Jurss, Anthony Russomanno, Charlotte Gibson, Faye Hipsman
Title: Assistant Attorneys General
Law firm / agency: Wisconsin Department of Justice
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story.
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Four new briefs were filed this week in Kaul v. Urmanski, one of two state Supreme Court cases seeking to have the right to abortion protected in Wisconsin.
A brief arguing in favor of abortion rights filed by Attorney General Josh Kaul is featured today. Posts about the other briefs, filed by Milwaukee County District Attorney John Chisholm; Dane County District Attorney Ismael Ozanne; and intervenor plaintiffs Christopher Ford, Kristin Lyerly, and Jennifer McIntosh, were filed on Sept. 14, 15, and 17, respectively.
In this case, Sheboygan County District Attorney Joel Urmanski is appealing Dane County Circuit Judge Diane Diane Schlipper's ruling last year that an 1849 statute outlaws infanticide, not abortions. Urmanski is arguing that the law does apply to abortions and should be enforced in the wake of the U.S. Supreme Court's 2022 decision striking down Roe v Wade.
Kaul, arguing that Schlipper's decision was correct, is represented by Assistant Attorneys General Hannah Jurss, Anthony Russomanno, Charlotte Gibson, and Faye Hipsman.
Introduction
The People of Wisconsin deserve a final, clear answer to a question no one should have had to ask in the first place:
Under Wisconsin law, is it lawful for physicians to perform an abortion that is not necessary to save the pregnant woman from dying, or is doing so a criminal felony?
The United States Supreme Court’s overturning of Roe v. Wade created immediate confusion in Wisconsin because of a law listed in the Wisconsin statutes, originating in the mid1800s, that would directly conflict with Wisconsin’s modern abortion laws if enforceable as to abortion.
The law originating in the mid-1800s, currently listed at Wis. Stat. § 940.04(1), would — if enforceable as to abortion — ban all abortions unless necessary to save the pregnant woman’s life. Wisconsin statutes, however, also contain more recent laws, including Wis. Stat. § 940.15.
(For ease of reading, I'll refer to 940.04(1) as "the 1800s statute" and will substitute that language for the number.)
These modern laws specifically contemplate and define parameters for physicians providing lawful abortions well beyond those necessary to save the pregnant woman’s life. They regulate how such abortions may be lawfully provided and exempt from criminal prosecution abortions that would constitute a criminal felony under the 1800s statute. Wisconsin law cannot render the same acts both lawful and a felony.
In 1994, attorneys argued, the state Supreme Court issued a decision that already "resolves this case."
In that case, State v Black, they said, the court found that a section of the law very similar to the 1800s statute "was not an abortion statute but instead a feticide statute only, in part because of the conflict in the law that would exist if both ... (laws) applied to abortion. ... Urmanski offers this Court no way to distinguish Black and no reason to overrule it."
Second, even if this Court had not already resolved this question through Black, the 1800s statute has been impliedly repealed as to abortion. Wisconsin law provides that an older law becomes unenforceable through the implied repeal doctrine if either (a) a newer law directly conflicts with the old law, or (b) a newer comprehensive regulatory scheme is fundamentally incompatible with the older prohibition. Both forms of implied repeal are present here.
Urmanski asks this Court to construe the mid-1800s law as rendering Wisconsin’s many modern laws meaningless — to do the exact opposite of what statutory interpretation principles require.
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