Planned Parenthood petitions Wisconsin Supreme Court to make 1849 abortion law unconstitutional

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Planned Parenthood of Wisconsin asked the state Supreme Court on Thursday to overturn a 174-year-old state law that conservatives have interpreted as an abortion ban. It's the second legal challenge to the statute since the U.S. Supreme Court invalidated Roe v. Wade.

The organization filed a petition asking the high court to rule the law unconstitutional without letting any lower courts rule first. And if the justices do so, Planned Parenthood will consider challenging other restrictions on abortion found throughout state law, including bans based on fetal viability and parental consent mandates, according to the organization's chief strategy officer Michelle Velasquez.

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"This petition is really asking whether the Constitution protects access to abortion," Velasquez said during a video news conference. "We're asking the court to basically say laws related to abortion would be subject to the highest level of scrutiny."

The Supreme Court has not said whether it will accept the case, or the related appeal of a lower court ruling won by Democratic Attorney General Josh Kaul. He challenged the 1849 law as too old to enforce and trumped by a 1985 law that allows abortions up to the point when a fetus could survive outside the womb.

Dane County Circuit Judge Diane Schlipper ruled last year that the law only prohibits attacking a woman with the intent to kill her unborn child. The decision emboldened Planned Parenthood to resume offering abortions in Wisconsin after stopping procedures in response to the U.S. Supreme Court ruling.

Sheboygan County District Attorney Joel Urmanski, a Republican, has appealed that ruling and earlier this week asked the state Supreme Court to take the case directly without waiting for a lower appellate ruling. Urmanski argued that the case is of statewide importance and will end up before the high court eventually anyway.

Demonstrators protest outside the Wisconsin Capitol, May 3, 2022, in Madison, Wis. Planned Parenthood of Wisconsin is asking the state Supreme Court to rule out a 174-year-old state law that conservatives have interpreted as an abortion ban. The organization filed a petition Thursday, Feb. 22, 2024 asking the high court to answer the question directly without letting any lower courts rule first. (Amber Arnold/Wisconsin State Journal via AP)

Planned Parenthood is seeking a much broader ruling, arguing that the Wisconsin Constitution's declaration that people have a right to life, liberty and the pursuit of happiness means women have a right to control their own bodies. The petition goes on to argue that phrase grants abortion providers the right to practice and means all people have an equal right to make their own medical decisions.

"The right to life and liberty, including the right to make one’s own decisions about whether or not to give birth and medical decisions related to pregnancy or abortion care from a chosen health care provider, is fundamental," the petition contends. "So, too, is a physician’s right to practice medicine, her chosen profession, and fulfill her ethical obligations of the practice of medicine."

The petition names Urmanski as a respondent. Urmanski's attorney, Matt Thome, didn't immediately respond to an email seeking comment on the filing.

The stage would be set for big legal wins for both Kaul and Planned Parenthood if the state Supreme Court decides to take their cases. Liberals control the court with a 4-3 majority and one of them — Justice Janet Protasiewicz — repeatedly declared on the campaign trail last year that she supports abortion rights.

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Typically judicial candidates don't comment on issues to avoid the appearance of bias, but Protaswiecz's remarks galvanized abortion supporters and helped her win her seat.