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in which the legislature implemented regulations on abortions under the framework that the old law was invalid, but not repealed.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.