Planned Parenthood made a somewhat surprising announcement on Thursday: It will resume providing abortion care in Wisconsin, even though litigation asking whether abortion is legal in that state has not yet concluded — and no court has yet issued an injunction prohibiting state officials from prosecuting doctors who perform abortions.
Abortions have not been freely available in Wisconsin since the Supreme Court overruled Roe v. Wade more than a year ago — though last July, a Wisconsin state judge did rule that a 174-old state law, which appears to ban abortions throughout the state, does not in fact do so. But that order, in a case called Kaul v. Urmanski, concerned a prosecutor’s attempt to dismiss the lawsuit. The Kaul lawsuit has not yet reached the stage where the judge hands down a legally binding order prohibiting this prosecutor from actually targeting abortion providers.
Significantly, the 1849 statute at issue in the Kaul case makes it a felony for “any person, other than the mother” who “destroys the life of an unborn child.” So, the law cannot plausibly be read to target patients who receive abortions. Planned Parenthood says that it intends to start offering abortions in Wisconsin on Monday, and patients who take advantage of these services should be immune from prosecution under the 1849 law.
Wisconsin abortion providers, however — at least prior to Planned Parenthood’s decision — quite reasonably feared that they could be prosecuted under the 1849 law, although there are strong arguments that this very old ban on abortions was limited or repealed by a later statute.
Planned Parenthood’s announcement also comes about six weeks after Democrats effectively gained control of the state supreme court, which was controlled by conservative Republicans for many years. Justice Janet Protasiewicz, the newest member of that court, campaigned on support for abortion rights, as well as on opposition to a gerrymander that’s given…
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