Wisconsin’s Democratic Attorney General said Tuesday he has no plans to enforce an abortion ban in the state if the U.S. Supreme Court votes to overturn the landmark 1973 Roe v. Wade decision later this year.
Josh Kaul, who is seeking reelection this fall, said Tuesday that, “because of the importance of the freedom at stake, but also because of the need to use our resources as efficiently as possible,” the Wisconsin Department of Justice will not be using its resources to investigate or prosecute alleged violations of the state’s 19th-century abortion ban, which could take hold if Roe is overturned this summer. The state law, passed in 1849, has remained on the books but has been made unenforceable by Roe.
“As long as I’m attorney general, we will not be using any resources for those purposes,” Kaul told the Wisconsin State Journal.
Wisconsin is one of nine states with an abortion ban law that predates Roe v. Wade, according to an analysis by the Guttmacher Institute, a research group that supports abortion rights.
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Under Wisconsin’s more than 170-year-old abortion law, destroying the life of an “unborn child” would constitute a Class H felony, punishable by up to six years of combined prison time and extended supervision and a fine of up to $10,000, or both. The “willful killing of an unborn quick child,” which is generally described as a fetus that has developed to the stage that it moves within the womb of the mother, would be a Class E felony, punishable by up to 10 years in prison and five years of extended supervision. The law, passed in 1849, includes an exception for when a mother’s life is in danger but not for rape or incest.
While most prosecutions for violating an abortion ban would likely be brought by district attorneys at the county level, Kaul said DOJ also has the authority to provide legal guidance to district attorneys and training to law enforcement agencies — though he didn’t provide specifics on what that might entail.
“I do not think that a ban on abortion should be enforced by any DA or law enforcement agency, both because it infringes on a fundamental freedom, but also because the resources of those agencies, and DOJ likewise, are much better used investigating things like violent crime or drug trafficking and should not be going towards trying to prosecute people for their involvement in abortions,” he said.
Fond du Lac County District Attorney and Republican candidate for attorney general Eric Toney said in a statement Tuesday that abortion laws “always should have been a state issue.”
“I am pro-life and I will enforce and defend the laws as passed by the Legislature and signed into law,” Toney said. “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.”
Fellow GOP attorney general candidate Adam Jarchow, a former state representative from Balsam Lake, said in an email that Kaul’s “unwillingness to enforce the laws of Wisconsin should disqualify him from the job of Attorney General.”
“As a pro-life father of two, I will always support the right to life,” Jarchow said.
Toney and Jarchow will meet in the Aug. 9 primary. The winner will go on to face Kaul in the Nov. 8 election.
As with other races on the ballot this November, Kaul said he expects that, if Roe v. Wade is overturned, “reproductive freedom is going to become a central issue in the 2022 elections — in many different races including the (attorney general) race.”
“The (attorney general’s) office will be one of the critical offices in determining how Wisconsin responds to any decision overturning Roe,” Kaul said.
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