MADISON, Wis. (AP) — Wisconsin’s Democratic attorney general filed a lawsuit Tuesday challenging the state’s 173-year-old abortion ban, arguing that statutes passed in the 1980s supersede the ban and it’s so old no one can say it passed with the consent of modern generations.
To the layman (me), this seems like a legitimate question. If the state has two laws about the same thing, which one governs? I don’t think that the most recent one necessarily wins. In this case, the older law bans almost all abortions. The newer laws in which the legislature implemented regulations on abortions under the framework that the old law was invalid, but not repealed. Common sense says to me that you overlay the two sets of laws and that is the law. So, in effect, the newly valid older law essentially invalidates the new laws.
But… Rick Esenberg, esq., opined on the Jay Weber Show that the cases are invalid on procedural grounds. Normally, someone has to be impacted by a law in order to have standing to sue. So, if an abortionist did an abortion and was being prosecuted under the old law, the doctor would have standing to potentially sue on these grounds. But the governor and AG are essentially suing the legislature for a law that was passed before any of them were born.
What’s interesting is that Kaul’s and leftist DA’s refusal to prosecute anyone under the old law may mean that the law is never challenged in court at all. If the law is not being enforced, then nobody will ever be being prosecuted and have the standing to appeal over it. Kaul may need to prosecute and convict someone just to create a case to challenge the law. I still don’t think they would win, but at least they would have a case to use.
What does the consent of modern generations have to do with anything? That’s a political barstool argument, not a legal argument.
>That’s a political barstool argument
Let’s wait and see what Penqiune overhears about it!
>What’s interesting is that Kaul’s and leftist DA’s refusal to prosecute anyone under the old law may mean that the law is never challenged in court at all.
Couldn’t a local District Attorney file charges? Or is this something that can only happen on the state level?
Either way, Kaul is on the ballot this year..,no?
A local DA could. But right now, I believe there are only two abortion mills in the state – Madison and Milwaukee. Given that Dane and Milwaukee County DAs have pledged to not prosecute anyone, I don’t know that another county DA would ever have the opportunity to try to prosecute anyone.
While I agree that the older law would have precedent, I would still question whether that is a good thing. Medical technology has redefined a few things in the last 173 years. It does make sense to make a new law based on knowledge levels today.
Errrmmm……what about “murder” has changed in 150 years?
Regardless, this is purely a political play by two nitwits who are about to leave office. The GOP–should it actually figure out the play–could hammer the daylights out of Evers/Kaul for this stunt.
“Errrmmm……what about “murder” has changed in 150 years?”
Well, the different degrees of murders, self defense, mental illness, appeals, sentencing,
Word around the campfire is that the Sheboygan DA will be enforcing the ban, and there is an abortion clinic there.
Also – do the laws currently on the books specifically target only medical procedures or are abortions induced via a pill also banned via statute? If the latter, then it stands to reason that any DA in the state could most likely find at least one case to prosecute.
Evers finally gave a logical explanation for all of those pardons and clemencies he has been handing out. I guess he doesn’t believe anyone should be in prison for any of those old laws.
Note I didn’t say a good explanation, jst a logical one.
>Errrmmm……what about “murder” has changed in 150 years?
Well, besides Mar’s very fine points, even you say that in ectopic pregnancies abortions are required. The first successful treatment was an abortion before the tube ruptured in 1884 less than 150 years ago. If abortions were universally banned 173 years ago, the books likely do not have a clause in allowing abortions for them. So even you, on the extreme end of ‘life, rights and all Government privileges start at conception’ do not define ectopic pregnancy abortions as murder. A 173 year old law likely would as it is unlikely to account for it.
So to answer your question of what has changed about murder: Concerning all types and reasons for abortions, maybe THE DEFINITION!
They were not “universally banned.” Read the law: ‘life of the mother’ is an exception to the ban.
940.04(5) This section does not apply to a therapeutic abortion which:
(a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
Okay so i read the law and my question is what supersedes the first statement?
940.04 Abortion.
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
Today (not back then, safely) a woman can take a morning after pill. Is that perfectly legal in WI? I see a couple of possibilities below that statement, but it sure seems like a good lawyer can get any woman off for aborting before the baby kicks. Anybody a decent law interpreter here?
THere is no felony charge for abortion to save the life of the mother.
You will ALSO note that mothers are excepted from felony charges.
Tuerqas on July 5, 2022 at 11:36 am
Okay so i read the law and my question is what supersedes the first statement?
Section 5 lists the exception:
940.04(5) This section does not apply to a therapeutic abortion which:
(a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
It is hard to not doubt the sincerity of folks who beleive abortion is murder yet insists that a woman not be punished for killing her own baby. If anyone is able to explain that kind of twisted logic then please do so.
940.04 Abortion.
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
None of those answered my question. I understand doctors are not liable for the therapeutic abortion. It says ‘other than the mother’. What is the mother liable for if she decides to abort the baby in a way where the doctor is not necessary? Or is a morning after pill, for example, only doctor prescribed so the doctor is still liable?
umnnnhhhh