Sheboygan Co. DA seeks dismissal of DOJ abortion lawsuit

Sheboygan County District Attorney Joel Urmanski filed motions on Wednesday seeking to have a Dane County judge dismiss Attorney General Josh Kaul’s lawsuit against the state’s 1849 criminal abortion ban. 

In his brief, Urmanski argued Kaul cannot challenge the law because he faces no personal consequences if it’s enforced. He also argued that three doctors, who have intervened in the case to have the law struck down on the grounds that it’s unconstitutionally vague, are not able to bring a suit against the law. 

Kaul, the state Department of Safety and Professional Services, the Wisconsin Medical Examining Board and the board’s chair are the original plaintiffs in the suit. 

The lawsuit had initially been filed against the Republican leadership of the state Legislature, but they successfully had the case dismissed against them, saying they had nothing to do with the enforcement of the law. That dismissal led to the suit being brought against Urmanski, Dane County District Attorney Ismael Ozanne and Milwaukee County District Attorney John Chisholm — targeting the three counties in Wisconsin where abortions had been performed. 

In his brief, Urmanski said that his personal belief that the abortion statute is constitutional has nothing to do with the plaintiffs and isn’t enough of a controversy to be raised in court. 

“The Department of Justice’s ability to represent the state in criminal appeals and to consult with and advise agencies and officers, including district attorneys, remains unencumbered,” the brief argues. “DA Urmanski’s opinion also has no impact on the ability of the Department of Justice to provide training and guidance to law enforcement officers. DA Urmanski’s opinion similarly has no effect on the ability of DSPS or the Medical Examining Board, as regulators of the medical profession, to fulfill their statutory duties of investigating physicians for alleged violations of state law.”

Urmanski argued that the proper plaintiffs for the case would be doctors, since they face the  threat of prosecution if the abortion statute is enforced. However he also argued that the complaint from the intervening physicians doesn’t hold up. 

The physicians are asking for an injunction that prevents prosecutors from charging doctors for violating the abortion law, arguing that the law is unconstitutionally vague in a way that will make it difficult for doctors to know what actions would be potential violations. The law provides an exemption if an abortion is performed to protect the life of the mother, but doctors have reported that they face uncertainty about the point at which a life-saving intervention can be considered legal. 

Urmanski stated that in order for the doctors’ claims to hold up, they’d have to successfully argue no possible application of the law could be constitutional. It’s clear, the brief argues, that an abortion performed between six and eight weeks of pregnancy is banned.