>> PARTIES ON OPPOSITE SIDES OF WHETHER ABORTION IS LEGAL IN
WISCONSIN WANT THE STATE SUPREME COURT TO SETTLE THE QUESTION.
EVEN AS ABORTIONS ARE NOW BEING PERFORMED IN THE STATE AFTER
DANE COUNTY COURT RULED LAST SUMMER THAT A 174-YEAR OLD LAW
ON THE BOOKS DOES NOT USE THE TERM "ABORTION" AND ONLY
PROHIBITS ATTACKING A WOMAN IN AN ATTEMPT TO KILL HER UNBORN
CHILD. ATTORNEY, JOEL URMANSKI, HAD
APPEALED THAT RULING AND ARGUES THE 1849 STATUTE DOES INDEED
PROHIBIT PERFORMING ABORTIONS EXCEPT TO SAVE THE LIFE OF THE
MOTHER. HE NOW WANTS TO BYPASS THE
APPEALS COURT AND ALLOW THE HIGH COURT TO CONSIDER THE MATTER.
LIKEWISE, WISCONSIN ATTORNEY GENERAL JOSH KAUL WANTS THE CASE
TO GO DIRECTLY UP TO AVOID PROLONGED HARM, HE SAYS, CAUSED
BY THE CONFUSION IN WISCONSIN LAW THAT EXISTED FOLLOWING
DOBBS. KAUL WILL ARGUE IN FAVOR OF THE
DANE COUNTY RULING AND THAT THE STATE CONSTITUTION PROTECTS
WOMEN'S RIGHTS OVER THEIR BODIES.
FOR MORE ON THIS, WE TURN TO EMERITUS PROFESSOR OF POLITICAL
SCIENCE AND AFFILIATE FACULTY MEMBER AT THE UW LAW SCHOOL,
HOWARD SCHWEBER. THANKS VERY MUCH FOR BEING HERE.
>> ENTHUSIASM. >> SO HOW GNARLY OF A CASE IS
THIS FOR THE SUPREME COURT TO UNPACK OR ARE THE ISSUES
CLEAR-CUT? >> IT'S AS NATURA GNARLY AS THET
IT TO BE. THE 1849 LAW ISN'T THE ONLY LAW.
THERE'S 1985, IT SAYS TWO OF AFTER TWO WEEKS, ABORTIONS ARE
PERMITTED IF THE WOMAN'S LIFE IS AT RISK.
THERE'S A 2015 LAW THAT EFFECTIVELY MAKES THAT LIMIT 20
WEEKS. THERE'S AN INFORMED CONSENT LAW,
24-HOUR DELAY LAW. IN 2019, THERE WERE NO FEWER
THAN FIVE BILLS PASSED OUT OF THE LEGISLATURE TO RESTRICT
ABORTION. SO THIS IS A LIVE ISSUE, FOUR OF
WHICH THE GOVERNOR VETOED. IT'S NOT JUST THE QUESTION OF
ARE ABORTIONS ALLOWED OR UP UNTIL WHAT POINT, BUT THERE'S A
WHOLE SERIES OF LAWS THAT COULD BE AT STAKE IN A RULING BY THIS
COURT. THE COURT HAS, OF COURSE, A NEW
MAJORITY REGARDED AS LIBERAL, WHICH IS ASSUMED TO BE MORE
FRIENDLY TOWARD ABORTION RIGHTS, BUT FOR BOTH SIDES, IT IS USEFUL
TO GET CLEAR ANSWERS. I THINK FOR THE PRO-LIFE SIDE,
IT WOULD BE USEFUL PARTLY, OF COURSE, JUST TO KNOW WHAT THE
RULES ARE BUT PARTLY TO USE THIS AS A MOBILIZING ISSUE.
IN 2025, EXCUSE ME, WHEN JUSTICE BRADLY CAME UP FOR RE-ELECTION
AND IN THE 2024 CAMPAIGN, PREVIOUSLY THE ABORTION ISSUE
HAS BENEFITED DEMOCRATS. I THINK THERE'S A FEELING ON THE
PART OF SOME REPUBLICANS THAT CAN BE TURNED AROUND IF VOTERS
THINK THAT THE PENDULUM IS SWINGING TOO FAR IN THE OTHER
DIRECTION. CONVERSELY, OF COURSE,
PRO-CHOICE ADVOCATES WOULD LIKE TO SEE THIS COURT STRONGLY RULE
IN FAVOR OF ABORTION RIGHTS AND SETTLE THESE ISSUES ONCE AND FOR
ALL. LIKELY OUTCOME IS ONE THAT WILL
PERFECTLY SATISFY NEITHER SIDE, WHICH IS SOMETHING TO THE EFFECT
OF SAYING THE 1985 LAW IS VALID AND REMAINS IN FORCE AND THAT
WAY AVOIDING THE QUESTION OF THE 1849 LAW ALTOGETHER BY SAYING IF
IT DID APPLY TO ABORTION, IT'S BEEN SUPERSEDED.
THAT WOULD BE THE EASY, EFFICIENT SOLUTION, AND IT'S ONE
I HOPE THE COURT WILL TAKE. >> MY READING OF THE KAUL
PETITION TO BYPASS SAYS IF THE DANE COUNTY RULING DOESN'T HOLD,
HE WILL ALSO ARGUE THAT THE MODERN ABORTION LAWS SUPERSEDE
THE 1849 LAW AND SO YOU THINK THE KAUL CASE STACKS UP PRETTY
WELL THERE? >> IT CERTAINLY GIVES THE COURT
AN EASY SOLUTION, ONE THAT IS NOT LEGALLY EXTREME.
THE WISCONSIN CONSTITUTION CERTAINLY PERMITS THE 1985
STATUTE UNLESS WE READ -- INTERPRET IT IN A DRAMATIC WAY,
SO I THINK IT STACKS UP LEGALLY AND IT STACKS UP POLITICALLY IN
A WAY THAT INK WOULD SERVE THIS COURT'S INTERESTS VERY WELL AND
FRANKLY I THINK WOULD SERVE THE INTEREST OF THE PEOPLE OF
WISCONSIN REASONABLY WELL, KEEPING IN MIND THAT WISCONSIN
IS A GENUINELY DIVIDED STATE ON THIS ISSUE, AS ON SO MANY
OTHERS. >> SO KAUL ALSO ARGUES THAT THE
WISCONSIN CONSTITUTION PROTECTS A WOMAN'S RIGHT TO CONTROL HER
BODY, FREEDOM OVER THE DIRECTION OF HER LIFE AND EQUAL PROTECTION
UNDER THE LAW. WOULDN'T THE OTHER SIDE ARGUE
THAT THERE'S A CONSTITUTIONAL úPROTECTION OF AN UNBORN CHILD?
>> WELL, NOT EXACTLY. SO A CONSTITUTIONAL PROTECTION
OF A RIGHT TO LIFE APPLIES TO THE STATE.
THE GOVERNMENT CAN'T TAKE YOUR LIFE AWAY.
THAT DOESN'T MEAN THAT THE GOVERNMENT HAS TO PROTECT YOU
AGAINST A PRIVATE PERSON. OF COURSE, WE HAVE LAWS AGAINST
MURDER, BUT THERE'S NO CONSTITUTIONAL REQUIREMENT THAT
HOMICIDE, LET'S SAY. OF COURSE WE WANT THOSE LAWS,
BUT THEY'RE NOT SCEUBLLY REQUIRED.
SO THE OTHER SIDE'S ARGUMENT ISN'T REALLY STRONG IF IT TRIES
TO WORK FROM THE IDEA OF FETUSES HAVING RIGHTS.
THE STRONG ARGUMENT IS ASSUMING THAT THERE'S A SUFFICIENTLY
IMPORTANT, AND SUFFICIENTLY POWERFUL LEGISLATIVE INTEREST AT
STAKE HERE TO OVERRIGHT, AND, OF COURSE, NO RIGHTS ARE ABSOLUTE,
WHETHER IT'S A FREE SPEECH RIGHT OR RIGHT TO ABORTION OR ANYTHING
ELSE. OVERCOME BY A SUFFICIENTLY
STRONG SOCIETAL INTEREST. THIS ASKS THE QUESTION, WHAT IS
THE SCOPE OF THIS RIGHT AND THEN ONCE THAT RIGHT IS DEFINED, WHAT
IS THE SCOPE OF THE GOVERNMENT'S LEGITIMATE INTEREST DESPITE THE
EXISTENCE OF WHAT CONSTITUTIONAL RIGHTS GUARANTEE.
>> SO ONCE THE SUPREME COURT THREW THE ISSUE OF ABORTION BACK
TO THE STATES, ARE THERE ANY OTHER STATES IN A SITUATION LIKE
WISCONSIN LITIGATING OVER A 174-YEAR OLD LAW?
>> I'M NOT AWARE OF ANY OTHER STATE IN THIS SPECIFIC
SITUATION, ALTHOUGH THERE ARE A NUMBER OF STATES THAT HAVE WHAT
ARE CALLED TRIGGER LAWS, THAT WERE ON THE BOOKS BUT
UNENFORCEABLE THAT IMMEDIATELY CAME INTO EFFECT WHEN THE DOBBS
DECISION CAME DOWN. CERTAINLY LOTS OF STATES ARE
WRESTLING WITH THIS QUESTION. THE MOST DISINGENUOUS PART OF
THE DOBBS OPINION, FRANKLY, WAS WHEN THE MAJORITY SAID THAT THE
DECISION WILL TURN IT BACK TO STATE LEGISLATORS.
OF COURSE WHAT IT'S DONE IS TURN THE QUESTION BACK TO STATE
COURTS, AND THAT'S WHAT WE'RE SEEING PLAY OUT IN WISCONSIN.
AND AS YOU SAY, ELSEWHERE AS AND AS YOU SAY, ELSEWHERE AS