MARISA WOJCIK.
>> ABORTION BAN OUTLAWS KILLING
FETUSES BUT DOES NOT APPLY TO
CONSENSUAL MEDICAL ABORTIONS.
THAT WAS THE RULING OF A DANE
COUNTY JUDGE ALLOWING A LAWSUIT
CHALLENGING THE BAN TO PROCEED.
THE JUDGE SAID THE LEGAL
LANGUAGE IN THE BAN DOES NOT USE
THE TERM "ABORTION," SO THE LAW
ONLY PROHIBITS ATTACKING A WOMAN
IN AN ATTEMPT TO KILL HER UNBORN
CHILD.
QUOTE, THERE IS NO SUCH THING AS
AN 1849 ABORTION BAN IN
WISCONSIN, THE JUDGE WROTE.
HERE TO UNPACK THE LEGAL
LANGUAGE AND IMPLICATIONS,
EMERITUS PROFESSOR OF POLITICAL
SCIENCE AND AFFILIATE FACULTY
MEMBER OF THE UW LAW SCHOOL,
HOWARD SCHWEBER.
THANK YOU FOR BEING WITH US.
>> MY PLEASURE.
THANK YOU FOR HAVING ME.
>> SO WHAT WAS YOUR REACTION TO
THE CIRCUIT COURT RULING THAT
SAID THERE IS, QUOTE, NO SUCH
THING AS AN 1849 ABORTION BAN?
>> IT'S A VERY SHARP POINT, AND
ONE THAT I THINK HAD BEEN
LARGELY OVERLOOKED.
TO BACK UP, THERE ARE
LONGSTANDING STATUTES AND
COMMON-LAW PRINCIPLES THAT SAY,
FOR EXAMPLE, IF THERE'S A CAR
ACCIDENT IN WHICH A FETUS IS
DESTROYED, THAT CAN BE A CRIME,
EVEN IF ABORTION IS LEGAL IN
THAT PARTICULAR STATE.
IF SOMEONE DELIBERATELY ATTACKS
A PREGNANT WOMAN, THIS IS THE
INSTANCE THAT THE JUDGE REFERRED
TO, WITH THE INTENTION OF
CAUSING A MISCARRIAGE, THAT'S
BEEN A CRIME BOTH UNDER STATUTE
AND ENGLISH COMMON-LAW FOR A
LONG TIME BECAUSE IT'S AN INJURY
TO THE WOMAN BUT HAS NOTHING TO
DO WITH THE QUESTION OF
VOLUNTARY ABORTION.
SO WHILE I THINK THAT SOME
VIEWERS, IT MIGHT SEEM STRIENG
TO STRANGE TO DRAW THIS ENGLISH
LAW GOES BACK FOREVER THAT YOU
CAN HAVE LEGAL CLAIMS HAVING TO
DO WITH THE DESTRUCTION OF A
FETUS WITHOUT NECESSARILY HAVING
A LAW HAVING ANYTHING TO SAY
ABOUT VOLUNTARY ABORTION AND
THAT'S THE DISTINCTION THE JUDGE
DREW, AND I THINK SHE'S RIGHT.
IN 1849 IN PARTICULAR, WHEN WE
WERE MUCH CLOSER TO OUR
COMMON-LAW ROOTS IN THE WAY THAT
WE THOUGHT ABOUT THESE
CATEGORIES, IT WOULD HAVE BEEN
UNSURPRISING TO MAKE THIS
DISTINCTION BETWEEN A TORTIOUS
ACT OR A WRONGFUL ACT THAT
CAUSES A MISCARRIAGE VERSUS AN
ABORTION.
THESE ARE JUST TWO VERY DISTINCT
AND DIFFERENT THINGS.
>> SO TO NON-LAWYERS, THOUGH, IT
SEEMS SURPRISING BECAUSE THAT'S
NOT THE ARGUMENT THAT JOSH KAUL
LAWSUIT IS USING TO OVERTURN THE
1849 LAW.
RIGHT?
>> RIGHT.
WHICH IS INTERESTING.
AS I SAY, IT WAS A SHARP POINT
AND IT TOOK MANY PEOPLE BY
SURPRISE, PARTLY BECAUSE WE ARE
SO UNUSED TO THINKING IN 19th
CENTURY LEGAL CATEGORIES.
THIS IS ONE OF THE PROBLEMS WITH
APPEALS TO HISTORY, WHETHER IT'S
SUPREME COURT JUSTICE TALKING
ABOUT ORIGINALISM OR SOMEONE
TALKING ABOUT A 19th CENTURY
LAW.
YOU HAVE TO PUT YOURSELF IN THE
MIND FRAME AND THE UNDERSTANDING
OF THAT PERIOD AND LEGAL
UNDERSTANDINGS IN PARTICULAR
WERE VERY DIFFERENT BACK THEN.
SO KAUL TRIES TO PUT THIS IN
MODERN TERMS.
IT WAS A LAW OVERRULED BY THE
ENACTMENT OF A LATER LAW.
I SUSPECTS, TO BE HONEST, THAT
IN HIS OFFICE, IT JUST DIDN'T
OCCUR TO ANYONE TO GO BACK TO
COMMON-LAW PRINCIPLE UNDER THE
1849 LAW, SAYING WHAT WAS THAT
PRINCIPLE ABOUT.
ATES CRIME PO PUNCH SOMEONE IN
THE NOSE.
IT IS NOT AS A CRIME TO PUNCH
YOURSELF IN THE NOSE.
I KNOW THAT SOUNDS LIKE A SILLY
ANALOGY, BUT IN THOSE KIND OF
BASIC LEGAL CATEGORICAL TERMS,
THAT'S THE DISTINCTION WE'RE
DRAWING HERE.
>> HOW DOES THE KAUL CASE GO
FORWARD IN LIGHT OF THIS RULING?
>> WELL, FIRST OF ALL, THIS
RULING WILL BE APPEALED, SO AT
THIS POINT, ALL OF THE ACTIONS
ON THIS RULING AND THE APPEAL
UNDERS ITS LAW, BUT THE CASE
WILL GO FORWARD AND RESULT,
ASSUMING THE RULING STANDS, IN A
DECLARATORY JUDGMENT, WHICH IS A
STATEMENT BY THE COURT THAT,
LOOK, THIS IS THE RULE, THAT
DOCTORS, FOR EXAMPLE, CANNOT BE
PROSECUTED FOR PERFORMING
ABORTIONS UNLESS THOSE ABORTIONS
ARE IN VIOLATION OF THE 1980s
LAW.
IN OTHER WORDS, UNLESS THEY'RE
POST-VIABILITY, AND WE WOULD
AFFECT WISCONSIN BE RESTORED TO
THE FRAMEWORK THAT WAS
ESTABLISHED IN THE CASE CALLED
CASEY, WHICH IS ONE OF THE --
CASEY AND ROE, THE TWO BIG
ABORTION CASES.
EFFECTIVELY THE WISCONSIN
STATUTE IMPOSED THE CASEY
FRAMEWORK, AND UNLESS AND UNTIL
THE LEGISLATURE CHANGES IT,
THAT'S WHERE WE WOULD BE.
SO ONE WAY TO THINK ABOUT THIS
IS THAT THE SUPREME COURT IN
DOBBS OVERRULED ROE, SO THERE'S
NO NATIONAL CONSTITUTIONAL RIGHT
TO ABORTION BUT THEY SAID STATES
CAN ESTABLISH RIGHTS TO ABORTION
AS THEY SEE FIT, AND THE EFFECT
OF THIS RULING IS WHAT WISCONSIN
DID IN THE 1980s IS THE LAW IN
WISCONSIN UNTIL SOMEONE CHANGES
IT.
>> WHAT DOES THE TIME LINE LOOK
FOR THIS CASE NOW IN DANE COUNTY
TO GET TO THE SUPREME COURT
WHERE DEMOCRATS, OF COURSE,
WANTED TO LAND AFTER THE AUGUST
1st INVESTITURE OF LIBERAL
JANET PROTASIEWICZ?
WHAT DOES THE TIME LINE LOOK
LIKE?
>> THERE'S THE NORMAL TIME LINE
AND AN EXPEDITED TIME LINE.
UNDER NEITHER SITUATION CAN I
IMAGINE THIS CASE REACHING THE
SUPREME COURT BEFORE AUGUST
1st.
>> PROFESSOR HOWARD SCHWEBER,
THANKS FOR JOINING US.
>> MY PLEASURE.
>> FOR MORE ON THIS AND OTHER
ISSUES FACING WISCONSIN, VISIT
OUR WEBSITE AT PBS WISCONSIN