Wisconsin governor files lawsuit to challenge state's pre-Roe abortion ban

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Wisconsin Gov. Tony Evers. Photo: Melina Mara/Pool/Getty Images

Wisconsin Gov. Tony Evers (D) on Tuesday filed a lawsuit challenging the state's 1849 pre-Roe abortion ban, asking a state court to declare the law unenforceable.

Driving the news: Evers had previously called a special session to try to repeal the law, but the effort failed after the state's Republican-controlled legislature gaveled in and out of the session refusing to take action.

  • While the pre-Roe ban is currently not in effect, Planned Parenthood of Wisconsin suspended abortion services following the Supreme Court's decision overturning Roe v. Wade and has begun to refer patients to out-of-state clinics.
  • The ban would criminalize abortion and only has exceptions to "save the life" of the pregnant person.
  • Over the weekend, Evers vowed to grant clemency to anyone charged under the ban if it were to be enforced.

Details: In the lawsuit, Wisconsin Attorney General Josh Kaul argues that the pre-Roe ban cannot take effect because there is already another law in the books that allows for abortions to be conducted up until the 22nd week of pregnancy.

  • "Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity," the lawsuit says, urging the court to say that the pre-Roe ban "has been superseded and cannot be enforced."

The big picture: Wisconsin is one of at least nine states with pre-Roe bans still on the books. However, these laws cannot take effect immediately after Roe's fall, they require some sort of state action in order to be brought back.

  • In Michigan, there is ongoing litigation brought by Gov. Gretchen Whitmer (D) asking the state's Supreme Court to declare that abortion rights are protected under the Michigan Constitution.

What he's saying: "I will never stop fighting to ensure every Wisconsinite has the right to consult their family, their faith, and their doctor and make the reproductive health care decision that is right for them," Evers said in a statement.

  • Any reproductive health decision "should be made without interference from politicians or members of the Supreme Court who don't know anything about their life circumstances, values, or responsibilities."

Go deeper: Nearly all abortions are illegal in 9 states but more bans are coming

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