Wisconsin attorney general says counties shouldn’t enforce archaic state abortion ban if Roe v. Wade is overturned

However, enforcement may not matter--Planned Parenthood says they would halt all abortion services anyway in Wisconsin if the landmark Supreme Court decision is overturned

MADISON, Wis. — Wisconsin’s attorney general Josh Kaul would not prosecute abortion providers under an archaic state law that would go into effect if Roe v. Wade is overturned, and would discourage district attorneys and law enforcement in the state from enforcing it either, he said in an interview on Tuesday.

“I have committed not to use any resources of the Wisconsin Department of Justice to investigate or prosecute any alleged violations of the 1849 ban,” Kaul said in an interview, referring to an old state law that would take effect if the landmark Supreme Court decision is overturned–as a leak suggests it might be.

Republican attorney general candidates running to replace Kaul in this fall’s general election call his decision a political stunt.

“I am pro-life and I will enforce and defend the laws as passed by the legislature and signed into law,” Fond du Lac district attorney and attorney general candidate Eric Toney said in a statement. “Josh Kaul has demonstrated he is nothing more than a politician seeking to defend the laws he agrees with and virtually ignore laws he disagrees with.”

A U.S. Supreme Court draft majority opinion leaked to Politico, published Monday evening, outlines a complete overturn of the 1973 decision that for nearly fifty years has established a constitutional right to abortion. Chief justice John G. Roberts Jr. confirmed its authenticity on Tuesday, but announced an investigation into how the unprecedented leak came about.

An opinion does not represent the Supreme Court’s ruling until it is published; still, the leaked draft represents what many have anticipated under the conservative-controlled bench. The ruling would return many states to preexisting laws outlawing abortion; in Wisconsin, an 1849 law would go back into effect which bans all abortions except those required to save a mother’s life.

Multiple legal experts say it’s unclear just how enforceable the 173-year-old law would be. “Whether that ban goes into effect I think is going to be the subject of a lot of litigation,” Kaul told News 3 Now in an interview on Tuesday.

Kaul added that county-level district attorneys and law enforcement–the people most likely to enforce the ban in the three counties where abortion services are offered (Dane, Milwaukee, and Sheboygan)–shouldn’t spend resources enforcing the ban either. Dane County district attorney Ismael Ozanne did not respond to a question about whether his office would enforce the ban.

However, its enforceability may not matter: abortion providers are likely to halt their services anyway, leaving women in Wisconsin to seek abortions in haven states like Illinois or Minnesota whose state laws protection abortion rights–or, potentially, increase the risk of self-administered, unsafe abortions.

Planned Parenthood: Abortion services would halt

“Criminalizing abortion in Wisconsin for 1.3 million women of reproductive age is not the future we want for ourselves, friends, families or communities,” Planned Parenthood Advocates of Wisconsin president Tanya Atkinson said.

Currently, Planned Parenthood performs many of the state’s abortions, with hospitals only doing them when needed to save a mother’s life. Three PP clinics offer abortion services in Wisconsin: traditional abortions are performed at clinics in Madison and Milwaukee, while a third clinic in Sheboygan offers pill abortions.

All of those services would stop if Roe v. Wade is overturned, a PP spokesperson clarified to News 3 Now, at least until the question of enforceability is settled.

That includes if county-level prosecutors choose not to enforce the ban, because a lengthy statute of limitations means doctors could face felony charges years after the fact if there was a changeover in the district attorney’s office.

The 1849 state law does not penalize mothers, but rather establishes a felony charge for providers performing the abortions: Up to six years in prison and a $10,000 fine, or up to fifteen years and a $50,000 fine if a fetus is past sixteen weeks development.

“If providers like Planned Parenthood of Wisconsin cease offering abortion services, as they will do if there are concerns that what they’re doing is potentially going against the law, then it doesn’t really matter if people are enforcing the ban or not,” Jenny Higgins said in an interview, director of UW’s Collaborative for Reproductive Equity. “If services are not available, Wisconsinites can’t get access to those services within our state.”

For advocates of removing abortion rights in Wisconsin, the pending decision represents a victory that isn’t quite finalized.

“We would of course love nothing more than to see Roe overturned and banished to the past,” Wisconsin Right to Life’s Gracie Skogman said. “But of course this is only a draft, so: cautiously optimistic.”

Current abortion laws in Wisconsin

Wisconsin’s existing state laws not affected by Roe v. Wade are fairly restrictive, with mothers required to wait 24 hours and seek counseling before an abortion since 1996.

Laws passed under Republican Gov. Scott Walker ban abortions after five months; however, he declined to back a “heartbeat” bill that would have banned abortions after six weeks.

RELATED: Anti-abortion bills clearing state Senate part of 10-year trend toward more state restrictions

The number of abortions performed annually in Wisconsin has steadily declined in the last couple decades, dropping to just over 6,000 a year in the most recent data from a high of around 17,000 to 20,000 abortions annually in the 1980s.