>> This week, the Wisconsin Supreme Court heard oral
arguments on whether the state's 1849 abortion ban is the law of
the land. The law went into effect when the United States
Supreme Court overturned Roe v Wade in 2022. Abortions halted
in Wisconsin until September of 2023, when a Dane County judge
ruled the law actually referred to Feticide. Here and now,
senior political reporter Zach Schultz was at the hearing and
tells us no matter what the court decides, abortion as a
political issue is not going away.
>> When the U.S. Supreme Court issued the Dobbs decision,
Republicans said the court was simply returning the issue to
the states. >> I mean, we're trying to get
it right. I hope not just get an outcome here.
more complicated than it sounds. >> We're trying to figure out if
medical providers here are going to be able to save women's
lives. So yeah, we better get this right.
arguments Monday, the members of the Wisconsin Supreme Court
heard arguments along several lines about which of Wisconsin's
many laws regulating abortion should apply.
>> The state of Wisconsin cannot have two laws on the same
subject, with the same scope, that provide directly
conflicting answers as to when conduct is and is not a felony.
>> The heart of the issue is this in 1849, Wisconsin passed a
law outlawing abortion referred to in arguments by its statutory
number. Nine 4004 in 1973, the U.S. Supreme Court issued Roe
versus Wade, which created a constitutional right to abortion
health care. The old law was unenforceable. In the years that
followed, Wisconsin passed several laws regulating
abortion, most recently a law in 2015 that created a cutoff of 20
weeks with an exception for the life of the mother, but no
exceptions for rape and incest. So, with Dobbs overruling Roe,
which law should apply? Lawyers representing Democratic Attorney
General Josh Kaul and doctors intervening in the case argue
the 1849 law was impliedly repealed when the laws were
updated after Roe was in effect, the legislature has spoken and
they've laid out a myriad of statutes that govern when
abortion can be provided, when women in this state can obtain
lawful abortions. Justice Brian Hagedorn says the court can't
ignore those later laws. We're trying to comply with Roe and
never actually repealed the original ban.
>> Meagan. We all know what happened. So unless there's some
conflict, the laws were not reversed off the books. I don't
know why. As a matter of straight, just reasonable
statutory interpretation, the law is still there. It's still
there. The judiciary doesn't get to edit laws. The judiciary
doesn't get to rewrite them. We didn't delete it. We prevented
its enforcement. Now it's still there. How can we just say, oh,
we can't enforce it anymore simply because the legislature
was doing other things when it was unenforceable.
>> All of that body of law, all of those statutes regarding
abortion, just go to the dust pile.
saying at all, is what you're saying, because you're saying
that if they were passed after Roe and if they were passed with
Roe in mind, then they mean something different today than
they meant before. liberals on the court hold A43
majority, and if they rule, the 1849 abortion ban was impliedly
repealed, it would mean that, ironically, it was a law passed
by Republican Governor Scott Walker in 2015 that saved
abortion in Wisconsin. >> Our legislature decided
fairly recently, at least in the scheme of these these these
regulations, that an abortion may not be performed after 20
weeks unless the mother is undergoing a medical emergency.
That's not based on Roe. That is the legislative policy that was
chosen by this state's legislature.
rules, the issue of abortion is not settled law, a point made
clear by Chief Justice Annette Ziegler the issue before this
court relates to. >> Nine 4004 whether Black rule,
whether it's impliedly repealed, whether it's still on the books,
it won't answer every question for everyone today. People need
to be before the legislature and ask them to do their job.
>> After all, the balance of the court could change in the
Supreme Court election next April or a different governor
and legislature could write a new law, a point made by
Attorney General Kaul after the hearings.
>> Whatever happens in this case, the issue, I don't think
is going to be permanently resolved in Wisconsin.
Certainly, this will provide important clarity, and I think
we'll at least for a time perio, address at least what current
Wisconsin law says. Wisconsin law says.