WI Planned Parenthood asks state Supreme Court to declare abortion a constitutional right

Planned Parenthood of Wisconsin filed a petition Thursday asking the state Supreme Court to declare that the Wisconsin Constitution establishes a right to bodily autonomy, including in the case of abortion. 

The lawsuit comes as a lower court’s decision that an 1849 criminal statute doesn’t apply to abortion is being appealed to the state Supreme Court. Leaders of the Wisconsin Legislature and Gov. Tony Evers remain at odds over where abortion law should stand.

Planned Parenthood argues in the lawsuit that the “inherent rights” established in the state Constitution, including the right to life, liberty and the pursuit of happiness, encompass “the right to determine what one does with one’s own body, including whether and when to have a child.” 

“We are asking the Wisconsin Supreme Court to answer the question: does the Wisconsin Constitution protect the right to bodily integrity, autonomy, and  self-determination — including the decision of whether and when to have a child,” PPWI Chief Strategy Officer Michelle Velasquez said in a statement. “Answering this question necessarily includes asking the Court if the Wisconsin Constitution protects access to abortion care and a healthcare provider’s right to provide this care. We think it does.”

The lawsuit challenges an 1849 statute that was widely interpreted as applying to abortion following the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision. It is the second lawsuit to do so. 

The first lawsuit, filed by Attorney General Josh Kaul in 2022, asked the Court to determine whether the 1849 criminal law was enforceable. The law, which only includes an exception for the life of the mother, effectively shut down all abortion services in the state until recently.

Dane County Judge Diane Schlipper ruled in the Kaul case last year that the 1849 law did not apply to consensual abortions, but rather applied to feticide, including from a violent attack on a pregnant woman. Following the ruling, Planned Parenthood restarted providing abortion services at locations in Milwaukee, Dane and Sheboygan counties. 

The lawsuit remains ongoing as Sheboygan County District Attorney Joel Urmanski, who believes the 1849 statute applies to abortion, asked the state Supreme Court this week to review the decision, saying the Court’s judgment was needed to clarify the issue. The state Supreme Court, under a new 4-3 liberal majority, is seen as friendly to abortion rights.

Kaul said in a statement about the appeal that the Department of Justice agrees that the apparel should go directly to the state Supreme Court so it can be “conclusively resolved.” 

“The case has led to access to abortion being restored in Wisconsin, and I remain confident that we will prevail on appeal. We must not go back to the situation Wisconsinites faced for approximately 15 months, when abortion was largely inaccessible in our state,” Kaul said. 

Velasquez said that the organization believes its new petition, asking the Supreme Court to find the 1849 statute unconstitutional, complements the Kaul case. 

“Despite all the progress that has been made to resume abortion care since the overturning of Roe, the protections afforded under Wisconsin’s constitution remain unknown,” Planned Parenthood of Wisconsin said. 

The petition states that the Court should decide either before or at the same time as it decides the Kaul case whether the 1849 law, if interpreted to prevent a woman from obtaining an abortion in all circumstances except to save the life of the mother, violates the rights of pregnant people and the physicians who provide care. 

“Even if Kaul v. Urmanski could be decided on statutory interpretation, the constitutional issue is likely to recur. With ongoing legislative efforts to enact a new abortion ban, the constitutional question should not be avoided,” the petition states. 

Democratic Gov. Tony Evers and the Republican-led Legislature have gone back and forth over various abortion proposals since the U.S. Supreme Court overturned Roe v. Wade in 2022. Most recently, the Assembly passed a bill last month that would ask voters to decide whether the state should adopt a 14-week abortion ban. Evers has said he would veto the bill. 

“The Court should determine, once and for all, that the fundamental rights to life, liberty, and equal protection held by all people in Wisconsin include the right to choose whether or when to have a child, and the right of physicians to exercise their judgment in providing abortion care,” the petition states. 

Along with Planned Parenthood, Kathy King, a licensed physician and Medical Director of PPWI, Allison Linton, a licensed physician and PPWI’s Chief Medical Officer and four women using pseudonyms, who reside in Wisconsin and have received an abortion, are petitioners in the case. 

Urmanski, along with Dane County DA Ismael Ozanne and Milwaukee County DA John Chisolm, are listed as respondents in the Planned Parenthood case. 

The petition also argues that the 1849 law, if applied to abortion, violates the guarantee of equal protection to Wisconsin physicians, who provide abortion services, by “impermissibly and arbitrarily preventing them from providing safe, effective, and desired medical care to their patients solely when it is provided for the purpose of abortion” and violates physicians’ right to liberty, “including the right to provide safe, effective, and desired medical care to their patients.”