Kaul has no plans of enforcing the ban, though local law enforcement officials could choose to do so. [Governor Tony] Evers said Tuesday he would grant clemency to those prosecuted under the ban....
But those 2 won't be in office forever, and acts done now could be prosecuted after they are gone.
The 19th century law is very harsh, making abortion a felony unless it's to save the life of the woman. It's been out of use for so many years that it seems wrong for it to suddenly spring into action, though it's not a surprise. We've known all along that this law was there, and the threat to Roe has existed for 50 years, so the legislature could have repealed it.
Should the state courts do what the legislature has not? Let's look at Kaul's legal arguments:
First, after Roe, Wisconsin passed a series of laws to regulate lawful abortion that are directly inconsistent with the 19th century ban.
Second, the law could be invalidated because it hasn't been used in the 50 years since Roe was decided, under a legal doctrine called desuetude that allows laws to be rendered obsolete because of disuse.
It feels like desuetude — pronounced "DEH-swih-tood," not "de-SOO-ih-tood" — but the disuse isn't because government has chosen not to enforce it. Roe blocked its enforcement. There were not violations of the old law that were left unprosecuted. The now-defunct right trumped the old statute, so there was no option to enforce it.
As for the newer laws, they seem to have been written to regulate consistently with federal constitutional law, so that makes it harder to read them as intended to supersede the old law. The legislature could have explicitly repealed (or amended) the old law, but it did not.
So I don't know what the Wisconsin courts will do with this new case, but it certainly shouldn't be a reason for the legislature to delay in writing a new statute that sets exactly the terms that we Wisconsin citizens want now. It will have to be some kind of compromise, but later legislatures can amend the law, and we need a new law right now. Not that I expect the governor and the Republican-dominated legislature to get anything done together.
पोस्ट्स
११४ टिप्पण्या:
If desuetude allows laws to be rendered obsolete because of disuse, does it matter the reason why? (voluntary lack of prosecution vs. federal override)
It leaves a conundrum of enforcement. It would be better to plead guilty and get clemency rather than have it not enforced with the potential prosecution at a later date under different prosecutor/governor.
Claims made by progressives:
Abortion is a right…
Roe v Wade is precedent…
Any law against abortion previous to Roe should be repealed…
(&is not considered a right or precedent)
Any restrictions on abortion is a threat to freedom…
Do they ever grow up?
We've known all along that this law was there, and the threat to Roe has existed for 50 years, so the legislature could have repealed it.
But, Of course, they NEVER did; And we ALL know why. Politically, it was a losing proposition.
For 50 years, legislatures were VERY happy to ignore abortion.. Because people vote.
The Thing is: HOW will they vote? My Crazily Liberal 90 year old mom told me; that NO ONE would EVER vote for a Republican Again. When I Told her that *i* certainly would be, she said that was irrelevant.. Because NO ONE would EVER vote for a Republican Again.
Jonathan Mitchell had a good essay on the Writ-of-Erasure Fallacy four years ago. He explains,
But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.
Mitchell sets forth some remedies that the legislatures should pursue when a Court has found fault with a statute.
I agree with you that the doctrine of desuetude doesn't seem to work here. I think the court should tell the legislature it should act to modify the law, if it doesn't like it. In the meantime, nonenforcement by the executive seems to be an option.
Excellent comment on the current tangle of old and new laws, enforcement policies and the duty of legislators (and law enforcement) to fix the mess. I particularly like the point about desuetude not being applicable because the old law was not neglected (from which could be inferred an intent to treat it as obsolete), it was flash-frozen by the decision in Roe, and nobody bothered to abolish it. So like the undead in a B horror flick, it stirs again.
In a dusty forgotten crypt, as the unsuspecting villagers slept, a stone lid scrapes open…
How many other states face similar work? How many are drafting patch jobs and scheduling the emergency sessions?
Anyone?
An ethical rule of law. So Pro-Choice. That said, a religion that denies women and men's dignity and agency, and reduces human life to a negotiable commodity, for social, redistributive, clinical, and fair weather causes. Wicked.
"acts done now could be prosecuted after they are gone."
Remember when FBI Director James Comey decided that Hillary Clinton wouldn't be prosecuted for her crimes while Secretary of State (how did he get to decide this???)
Acts done then can also be prosecuted after they are gone.
A future Republican Attorney General can elect to prosecute Hillary Clinton for her crimes, including inducing her lawyers to lie to the FBI. And I would be voting for any Republican who promised to do it.
A new law to replace the current one won't be infanticide on demand ("with no apologies") like the crazed militant left demands, and won't be a complete ban like the crazed religious types demand. Neither can pass, though a complete ban has a better chance. We'll likely end up with a ban with exceptions rather than a right with limitations. But status quo clearly favors doing nothing and not seeking a deal yet, which is why Kaul and the abortionists are taking the proactive step to challenge the law. Until that law goes the R's have little reason to talk other than Kaul's threat not to enforce and Evers' promise of clemency, both of which are idle unless they win reelection.
Prediction: I expect a Dane County judge to strike down the law, the court of appeals to duck, and the WISSCT to take the case immediately and issue a 4-3 decision reversing the Dane County judge upholding the law.
Planned Parenthood is a big corporate business. As such, I have a hard time imagining them committing an act that the law makes a felony, no matter what Evers promises or what Kaul plans to do or not do. I would guess they're effectively out of business until this standoff is resolved through legislation.
Are they and the Democrat pols going to stand on principle and refuse to compromise with the Republican legislature? Are the Republicans going to refuse any accomodation or compromise, when it's clear that the public doesn't support either side's most extreme position?
Maybe! But let's hope they all come to their senses.
So the Attorney General is not seeking to defend the law but have it declared inoperable. How does that work? In fact, it doesn’t. State v. City of Oak Creek, 232 Wis. 2d 612, {2013}.
What I find deeply troubling is how many government officials say they won't enforce... what exactly? not Dobbs but... whatever (state) laws are on the books. This is part of a larger trend we've observed in the last decade or so. Not enforcing laws, including ignoring federal court decisions. Or to express it more broadly, a decline in the "rule of law".
Democrats have ignored state law for 50 years, sitting on their lazy rear ends, secure in the knowledge that Roe was the law of the land. This NPR reporter nailed it back in 2016:
The Democratic Party Got Crushed During The Obama Presidency
When Obama took office, there were 60 Democratic senators; now there are 46. The number of House seats held by Democrats has shrunk from 257 to 188.
There are now nine fewer Democratic governors than in 2009. Democrats currently hold fewer elected offices nationwide than at any time since the 1920s.
Mara Liasson | National Public Radio | 4 March 2016
When attorneys general decide to prosecute or not laws based on whether they personally think the law is a good one, it's time to take a close hard look at prosecutorial discretion. This one stinks of corruption.
Prosecution cannot occur in retrospect, but ignorance of the law (biology, etc.) is, supposedly, selectively, opportunistically not a viable excuse. This is precisely why the Court overturned the Roe precedent (i.e. emanations from penumbras) that has been the rationalization of diverse acts of mischief.
Speaking of rites, has the Progressive Church/Corporation/Clinic/Chamber/Charity offered an apology to retain the practice on religious grounds? The offering of a virgin[al] (human life) for social, redistributive, clinical, and fair weather causes was a common feature of diverse traditional cults.
Althouse said: So I don't know what the Wisconsin courts will do with this new case, but it certainly shouldn't be a reason for the legislature to delay in writing a new statute that sets exactly the terms that we Wisconsin citizens want now….Not that I expect the governor and the Republican-dominated legislature to get anything done together.
There is no reason for delay. 14 weeks. Get it over with. But Evers blew any chance for having a working relationship with the GOP legislature when he got caught secretly recording meetings with them in 2010. The demographics of WI ensure a GOP dominated legislature, so they don't have to move, and the GOP Gubernatorial candidates will have to grandstand on this issue. Such a shame. We were once a great State.
But in the end Evers and Madison Democrats ignore whatever laws they want, and usurp any limits on authority they think they need.
On the issue of desuetude, it's a 173 year old law that has been blocked by the Supreme Court for 50 years. When was the last time it was enforced? If it was already generally ignored prior to 1973, then the disuse argument could still be considered sound.
Does Evers have to grant clemency for every single abortion performed, or can he grant lifetime special dispensation to abortion "doctors" like the Pope?
Can he grant clemency to and individual for all past and future abortions' performed?
What a dumb ass.
"The 19th century law is very harsh, making abortion a felony unless it's to save the life of the woman."
South Dakota also makes abortion a felony unless it's to save the life of the woman, and its law was only passed in 2005.
The 19th century law is very harsh, making abortion a felony unless it's to save the life of the woman. It's been out of use for so many years that it seems wrong for it to suddenly spring into action
It was the law in 1973 until SCOTUS illegitimately struck it down with Roe, yes?
First, after Roe, Wisconsin passed a series of laws to regulate lawful abortion that are directly inconsistent with the 19th century ban.
But didn't eliminate the ban. Bring it up in the State Legislature. You Democrats need to submit the new law you want
Second, the law could be invalidated because it hasn't been used in the 50 years since Roe was decided, under a legal doctrine called desuetude that allows laws to be rendered obsolete because of disuse.
I'm sorry, but that's a fundamentally and shamefully dishonest argument.
SCOTUS has quite properly rolled that Roe was an illegitimate decision that should never have been made.
To argue that a State following SCOTUS's illegitimate and repealed orders loses laws because it didn't enforce the laws that SCOTUS wouldn't let it enforce is about the most ludicrous argument one can make
It is a very telling pathology of the Left, their total unwillingness to let anyone who's not a "judge" ever vote on anything meaningful
why can't a Governor issue executive amnesty like Presidents seem to be able to do?
Wisconsin AG files lawsuit to block state law.
What? Did he file a lawsuit where the state sued itself?
If I were a person wanting to get an abortion, or a medical practitioner wanting to perform abortions and I was in Wisconsin, I would probably not do so given the uncertainty of the legal situation. I would not trust the current prosecutorial discretion or clemency promises unless I knew that they would permanently absolve me from risk. I would not trust it unless I knew I could not be prosecuted in the future by different people. I think we saw that in Texas when the abortion centers shut down immediately due to the risk of the law there being applied to them. That is logical and prudent. Especially if the statute of limitation on the offense is really long.
Note that this argument is not specific to abortion. Any law on the books would get the same treatment.
As for a legal remedy being placed on the books, it will be interesting to see what occurs. Law suits have been raised in many states to block enforcement of trigger laws. Maybe courts can place injunctions on enforcement that would hold blameless anyone involved in abortion for a specific period of time. I think that will play out in a lot of states, maybe with varying and opposite decisions depending on the makeup of the court doing the review. I would wonder if that would be limited to the high courts of each state or if that would bubble up to federal courts. (I don't think so.)
Anyway, there will be a scramble to to try and get abortions permitted in some form or another as the pro-choice group will not go quietly into the night. This will be hard-fought and bitter, state by state, with wins and losses across the board. Don't be surprised if a solid red state has a liberal ruling that allows abortions for a time while a blue state ends up with a more restrictive ruling from a conservative judge.
As someone pointed out earlier (Sorry I can't remember who to give credit to), eventually nearly all states will settle on a compromise position. There will be some hard rights with almost a total ban, some hard lefts with no ban, but probably 30-35 states will end up with something in the range of 15 weeks. The issue will be how long it will take and what will happen temporarily as they work for a permanent law.
I expect Wisconsin to end at the 15 week mark and also to have a temporary order to allow abortions to give the legislature time to act. In the short term, the Republicans may compromise with the governor on something temporary or maybe even codify a 6-10 week law that will get modified upwards over time. The left will push hard for something, the right will dig in and hold for little to none, but there will be moderates on both sides looking to meet in the middle. They will cut the baby in half to try and get something through.
My own state (Washington) will probably try and use this opportunity to go all in and remove all restrictions, except maybe partial birth and post birth, but I would never put it past our lefty-dominated government to go full-monty on this on the premise that we need to protect women's rights against all chances of restriction by the Nazis.
Evers could do DACA = Definite Amnesty for Completed Abortions
I'm wondering how this gets resolved in Wisconsin. If someone -- a pregnant woman or an established abortion clinic -- goes to court seeking an injunction to prevent enforcement of the 19th century ban, presumably they would need to show that they were under some kind of imminent threat of irreparable harm if that statute remains viable (sorry, couldn't resist). But the governor has said he won't enforce it, and I assume that's also the position of many Wisconsin prosecutors. So a judge would probably be correct in denying the injunction on that rather technical basis. In that case, any established abortion provider in Wisconsin would be a fool not to cease performing abortions for the time being at least.
Alternatively, a judge could hear the case and decide the legal issue raised by Prof. Althouse. However, for the reasons already discussed, the judge could well decide that desuetude does not apply and the statute will remain on the books so to speak until the legislature repeals it. Again, the abortion industry in Wisconsin comes out the loser.
For these reasons, it seems like the anti-abortion faction in Wisconsin is much better positioned in this stalemate than the pro-abortion side. Whether the old law is enforced or not in a particular case, it serves as a Sword of Damocles over any doctors or clinics that were providing abortions prior to Dobbs.
Dear WI Democrats
You have before you a golden opportunity. You can craft a new abortion law that the voters of WI will find better than a total ban, present it in public with the backing off the Democrat Governor, the Democrat AG, and the Democrats in the State Legislature, then have the Democrat Governor call the State Legislature into Special Session for the purpose of passing your bill
The GOP will then have to cave, or else get slaughtered in Nov
All that's required is for you to provide an abortion law that the People of WI will support
That's not hard, is it?
Oh, it is? You can't actually do that, because your positions are so lunatic and outside the mainstream that doing that would cause you to lose every single statewide race?
Interesting
WHY do we even have laws anymore, if Politicians can decide which ones they want to enforce??
Granting clemency is fine, but this stuff where law enforcement officials unilaterally decide to enforce or not enforce laws based on how they feel about those laws seems on of those "dangers to the republic" I keep hearing about.
Your sanctuary city and prosecutorial discretion is my wholesale breakdown of the rule of law.
A nation of laws, not men* (void where the laws are, like, icky)
It is shameful how much the left talks about Democracy, yet when faced with using democracy to pass legislation supporting their agenda; they look to the courts for an easier path. I wasn't sure Chief Justice Roberts would agree with Dobbs, but I thought he would to be consistent with his opinion on Obamacare as a tax, which was for the legislature to remedy the issue. Republicans, under Trump, at least tried to pass such legislation only to get screwed over by McCain.
As for old laws triggering an instant ban; I do find that somewhat troubling, but the remedy is still the same. Leniency in the near term is actually reasonable to me, but I would define near as something no greater than 90 days. I could be persuaded longer for something like Texas in which the legislature won't meet again until next year (although the Governor could call a special session, but Abbott would never do so).
ConradBibby said...
prevent enforcement of the 19th century ban
You know, that really is a dishonest framing, given that it was the WI law in 1973.
If you want to claim that "no abortion was prosecuted in WI in the 20th Century", then you can call it a "19th Century law".
But a law that was being actively enforced in 1973 was a "1973 law", no matter when it was passed.
Unfortunate, isn't it, when officials sworn to uphold the law decide not to because of their political preferences. Not surprising, they are virtually always Democrats and are supported by their base that has been conditioned by "educators" and leftmediaswine to accept a government of men, not laws.
Democrats corrupt everything. Donkeypox!
Since the law was always on the books, and the Supreme Court has now recognized that it was always constitutional, would it be possible to prosecute someone for performing an abortion last year?
My guess is no. "Reliance" was brought up as a reason not to overturn Roe. That was a lousy argument. But reliance should be a good defense if someone is prosecuted for an action taken before Roe was overturned.
You can't have it both ways. You can't rely on the fact that the newer statutes did not *explicitly* overrule the older, but then ignore the fact that the new laws were not *explicitly* conditioned on Roe being good law.
I don't see a conundrum here at all. Where a newer statute conflicts with an older one, the newer one controls. That's statutory interpretation 101.
The argument that the newer statutes seem to be conditional upon federal law being applied in a certain way strikes me as completely alien to any conventional understanding of statutory law. I can't think of any other circumstances where a legislature could be said to have enacted a law that was (implicitly) meant to be valid only if certain external events happened, and otherwise intended to somehow fall into disuse.
What is the actual legal argument against the newer statutes? That Dobbs impliedly abrogated all abortion statutes enacted when Roe was the law? That's hugely broad and would sweep away a lot of state laws across the country. How many state legislatures were explicit as to whether their statutes were dependent on Roe? If only certain state laws are no longer valid, what is the test for determining which ones?
Wa St Blogger said...
Anyway, there will be a scramble to to try and get abortions permitted in some form or another as the pro-choice group will not go quietly into the night
But apparently what they WON'T do is offer a new law
Curious, that
Almost like they firmly believe that the majority of voters disagree with their position.
Evers is up for re-election in November. No gerrymandering in his race. If he had a law to propose that the majority of WI voters would like, he'd be proposing it.
No?.
Hey, remember how mad all those leftists got when Kim Davis wouldn't issue marriage certificates for gay couples? Remember what a terrible person that made her? Fun times...
The question has been returned to the state of Wisconsin so that the voters can debate and decide. But immediately the Dems try to return the issue to the courts, saying "this law has fallen into desuetude." Why keep going into courts? Polls by abortion supporters show majority support, so why worry? Go in, legislate and and pass the law the people want. I feel pretty sure that the law that would pass tomorrow would set limits and I also feel pretty sure that the Dems want no limits and won't even try for less. After years in pro-life I still don't really understand why that is but I think unlimited abortion is wanted by a tiny but dominant minority. The landscape is so changed it's hard to look ahead but it's possible we're looking at another case of RBG syndrome, i.e., untreated deteriorating vision leading to total blindness. The Dems just can't see that infanticide, drag queens, and crime are not as appealing as cheap food, low gas prices and good schools.
ULTRA DRAG - DEMS 2022
From the post:
"But those 2 won't be in office forever, and acts done now could be prosecuted after they are gone."
That's if mail-in voting, ballot harvesting, and magic votes in Racine County go away. Otherwise, it's Democrats all the way down.
BarrySanders20 said...
But status quo clearly favors doing nothing and not seeking a deal yet, which is why Kaul and the abortionists are taking the proactive step to challenge the law. Until that law goes the R's have little reason to talk other than Kaul's threat not to enforce and Evers' promise of clemency, both of which are idle unless they win reelection.
Well, now, that depends on whether the GOP State Legislature unanimously thinks that "no abortion ever" is a good law.
If between the Dems and the GOP there's a majority of members in both Houses for something other than total ban, something could get passed.
Unless, of course, the Dems would rather have a total ban, than work to pass something less restrictive
Prediction: I expect a Dane County judge to strike down the law, the court of appeals to duck, and the WISSCT to take the case immediately and issue a 4-3 decision reversing the Dane County judge upholding the law.
That looks correct to me
There are two laws in Wisconsin regarding abortion- the one that outlaws it outright, and the one that allows it up to 22 weeks gestation. The two laws are contradictory, so you go with the one that is more recent. The very fact of the more recent law implies it rescinds the older one, else why pass it in the first place? It really shouldn't matter why the legislature changed the law, the law was still changed. The courts should reach this conclusion in days, not weeks.
I would hope that the people who want to make abortion legal in Wisconsin have learned from Dobbs and do the hard work of getting a law passed so as not to rely on permanent control of the courts to do the work. Yes it is possible to lose control of the legislature and executive but it takes more work and political capital to repeal an existing law, especially if it is broadly popular.
Headline on a local Madison news website:
Evers, Kaul filing challenge to Wisconsin's criminal abortion ban in wake of Supreme Court ruling (Emphasis mine.)
This was not on the opinion page.
"Note that this argument is not specific to abortion. Any law on the books would get the same treatment."
This raises the desuetude point. Another law still in Wisconsin's statute book criminalizes adultery (a felony at that):
944.16 Adultery. Whoever does either of the following is guilty of a Class I felony:
(1) A married person who has sexual intercourse with a person not the married person's spouse; or
(2) A person who has sexual intercourse with a person who is married to another.
Near as I can tell, this law was also passed in 1849 and remains lurking in the secret document called our state statute. And those crafty legislators got both of the randy partners even if one is not married by including section 2.
In the year just preceding Roe v Wade, were women prosecuted under this law in Wisconsin?
What WAS the last year a woman was prosecuted under this Wisconsin law?
Because whatever way they were able to get around it then, they could do now, and there's no need to hyperventilate.
Which is why we're not going to see these questions answered in the media I predict.
has the Progressive Church/Corporation/Clinic/Chamber/Charity offered an apology to retain the practice on religious grounds?
Yes. I've come across people making the argument for legal elective abortion on religious grounds. The most common version I've seen is that it's permitted in (some forms of) Judaism. It's a genuinely interesting argument because it tries to ground the right to abortion in the First Amendment. "Your religion says you can do something that the law says you can't do? Oh dear. We don't want to infringe your right of religious expression".
It's a good argument that however doesn't hold up for long under scrutiny. A cheap counterargument is that (as a professor in Constitutional Law course argued one day) historically religious freedom isn't as unlimited as we like to think. There are some practices that a strong enough majority says "no, you can't do that, we don't care what your religion says". I can see people challenging such prohibitions in Court. A better counterargument is that theoretically someone can say "my religion permits me to do horrible, destructive things, you can't infringe that". And of course there are counterarguments to that counterargument.
Shorter Democrats: All we need are people in positions of authority to disregard the law on our behalf!
These people have gotten so lazy, relying on sanctuary cities, "progressive" prosecutors, executive orders, and extra-Constitutional Supreme Court rulings, that they can no longer work the levers of Legislative or Executive power.
See also: Biden, Joe.
The operating mechanism of the Democratic Party has become: "I don't have the legal authority to do this, but..."
protect women's rights against all chances of restriction by the Nazis
The Nazis subscribed to diversity [doctrine] (e.g. ageism) under a pro-choice ethical religion to socially justify operation of abortion chambers that relieved "burdens".
The Governor's promise of clemency doesn't seem that potent in this case. He can only pardon after a conviction, and his pardon doesn't give the defendants back their lost legal fees, their time spent in court, etc. Even with certainty that any convictions would be expunged, there's still a massive cost for any doctor who continues performing abortions.
It would be nice if the governor could show a little leadership and work with the Republican legislature to adopt abortion laws acceptable to the majority WI voters. It is so easy for pols to forget that they are supposed to serve the interests of the voters not just their own personal interests.
Obviously, Democrats have burned any bridges that might have permitted sensible abortion law. The riots and insane rantings on social media as well as the Trump hysteria that has given us high gas prices and summer blackouts will prevent any cooperation until sanity returns. The LA Times is hysterical while everyone knows California will continue to have the most radical abortion laws in the country. Mike Pence Republicans are no better.
The karmic irony of social progressive liberals bitterly clinging to a nonviable stare decisis rule inspired by emanations received from the penumbras of the Constitution.
Roe's regrets. Ruth's remorse. Human rites.
Nothing says good government than refusing to enforce laws. I see no downside to this course of action.
Due to the leak, states had 50+ days of warning that Roe would likely fall, yet many did nothing to prepare. Not even writing legislation much less try to enact it.
Similarly, Justice Thomas' controversial statement seems to me to be another warning to the legislative/executive branches that they should not rely on the precedents and take actions to codify the rights.
It's not even a week, and the extremes continue to bluster about throwing mothers in jail and dismembering 8-month fetuses. My non-legal take is that after 49 years the Supreme Court got tired of being the daddy who decides and told the kids that they have to work it out among themselves. After cooling off for a couple of months elected representatives in purple states, and maybe even in some red ones, should start hammering out compromises because that's what voters want. If they don't, they'd better be real sure about how a hard line will play in November.
ConradBibby @ 9:52: “…Sword of Damocles…” (and a tip of the hat to others up-thread voicing similar observations): Yes. It is hard to see how anybody worth suing would be willing to engage in an abortion until there is more legal clarity. Whoever insures Planned Parenthood and abortion practitioners almost certainly won’t cover claims arising from a breach of the law —and a knowing breach at that.
I can’t imagine what advice —other than “No. Just No.”— is being dispensed by counsel to PP and similar players in what is a very big and thriving* industry.
* Sorry, my dark humor broke through there.
"Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony."
- Wisconsin statute 940.04
Would offering a prescription for the two medications which are used in most abortions prior to 12 weeks clear the prescribing physician of a violation if she did not administer the drugs herself but allowed the patient to do so, as some euthanasia laws clear the physician of murder since the patient self-medicates and is the actual killer?
Maybe, but she might face a conspiracy charge.
The AG and Governor both took oaths to uphold the law. That oath is not conditional upon their agreement with any particular law. While they may not like that old law, it isn't their place to disregard it simply because they disagree with it for political reasons. If they don't feel they can do their jobs, resign. The law is the law.
If the law ought to be changed, then the legislature ought to change it. If allowing abortions is so damn important to the governor, then he should work something out with the legislature and compromise. That probably means he doesn't get everything he wants, which is why he doesn't want to do it.
The courts should bounce these lawsuits asap. Allowing the governor or the AG to ignore the law and go to court circumvents the legislative process. If they don't like the old law, work on a new law they like better. OR, the AG could enforce the crap out of the old law until enough people demand a change. Either way, everyone needs to calm the fuck down and do their jobs instead of asking the courts to do it for them. That's how we got this mess in the first place.
Again, why is that people who call themselves Democrats are so opposed to the democratic process?
Also, nothing says good government than legislatures letting - and wanting! - the courts to do their jobs.
What cutoff point do the people of Wisconsin want? The old law, which might be good law, has no period at all at the beginning of a pregnancy where a woman can have an abortion. I'm sure there are many Wisconsinites who like that and many others who think the viability line isn't late enough. But get a new law in place now that sets the number somewhere that allows some access to abortion. It could be 8 weeks or 15 weeks — arrive at a number and put a law through that replaces the 19th century law.
Later, when one party or the other gets full control of the process, they can move the number down or up.
There are two laws in Wisconsin regarding abortion- the one that outlaws it outright, and the one that allows it up to 22 weeks gestation. The two laws are contradictory, so you go with the one that is more recent.
You mischaracterize the law. It does NOT alllow abortion up to 22 weeks. Rather, it DISALLOWS abortion after, not 22 weeks, but 20 weeks or "viability" (Wis. Stat. §§ 253.107 and 940.15). The fact that subsequent statutes disallow performing an abortion after a certain time does not create authority to do it before then. Moreover, in enacting these laws, in no fashion did the state legislature repeal Wis. Stat. § 940.04, which outlaws the destruction of the life of an unborn child from the time of conception.
Rick67 @ 10:59: your argument (IMHO sound) that calling abortion a religious practice is unlikely to work, reminds me of the famous remark by Sir James Charles Napier when he governed India and an Indian priest protested that suttee (widow burning) should be exempt from criminal prosecution: “Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs.”
This law is still on the books due to the arrogance of the Democrats since Roe v Wade was instituted. There have been a few instances since then when the Dems controlled both branches of the WI legislature (and there is no filibuster in WI) and the governor’s office, as recently as 2009-2010, when they could have passed any abortion law that they wished to. The Dems were arrogant enough to assume that Roe v. Wade would always be the law of the land despite numerous challenges to it in the federal courts. Now that the Dems have been “caught with their pants down”, Kaul and Evers are resorting to guerilla tactics to fight the law since they absolutely refuse to even reach out to the Republicans who control the legislature to see if there is a way to modify the law. Evers is running for re-election and his tv ads says he is bi-partisan and that he worked with the GOP on passing a budget, which is a blatant lie. So, Evers and Kaul will probably not attempt to work with the GOP legislature.
For those interested, here's a link to the Complaint filed by Kaul's office in Dane County circuit court: https://bloximages.chicago2.vip.townnews.com/madison.com/content/tncms/assets/v3/editorial/4/30/4300dee4-a0ef-50e1-ba05-37ceb5ac5a2b/62bb577124c16.pdf.pdf. In effect, it's a request for declaratory judgment, that the draconian, broadly prohibitive anti-abortion statute, sec. 940.04, can't be enforced. But that would still leave the narrower sec. 940.15 (limiting post-, but not pre-, viability abortions) in place.
For whatever it's worth, I think Althouse underestimates the chance of litigation success. She says, "The legislature could have explicitly repealed (or amended) the old law, but it did not." True, certainly, but the operative principle is that a subsequent statute may work an implicit repeal of an earlier one; that is, explicit repeal isn't necessary. And that is indeed the AG's argument (Para. 45): "Later-enacted laws impliedly repeal earlier-enacted laws where the earlier-enacted law conflicts with the later-enacted law[.]" Sec. 940.15 appears to be irreconcilable with the earlier 940.04, and a court could tenably find implicit repeal. I think it's a safe bet that's what the circuit court will conclude. The inevitable appeal might be a closer-run thing, but it strikes me there's a better-than-fair chance of affirmance. If so, then we're left with 940.15, itself a compromise that of course will leave some dissatisfied. But would also greatly reduce the agitation for additional legislative action.
What cutoff point do the people of Wisconsin want?
The problem is that Democrats and other pro-abortionists cannot accept ANY cutoff point. To accept any cutoff is to destroy their argument of absolute bodily autonomy, that it is a "women's choice" and that the "fetus" is not a living human being. That's why you had politicians throughout the country saying that, yes, their position would prohibit any restrictions up to labor and even expressly saying that includes "when the woman is dilating."
A Brief History of Abortion Laws in Wisconsin
https://docs.legis.wisconsin.gov/misc/lrb/lrb_reports/history_of_abortion_laws_6_4.pdf
Prof A @ 11:59: “…they can move the number down or up.” Sounds wonderful. “Honey, you better call PP and get an earlier appointment….oh, wait. I misread the news. In fact, the window got bigger: we can sneak in some vacay before your ‘big day’!”
If this law becomes a shuttlecock* in a game of legislative badminton, who will not treat the whole business, and “the majesty of the law,” with the most corrosive contempt?
*Yes, yes: I know. I denounce myself.
Yancey Ward said...
There are two laws in Wisconsin regarding abortion- the one that outlaws it outright, and the one that allows it up to 22 weeks gestation. The two laws are contradictory, so you go with the one that is more recent. The very fact of the more recent law implies it rescinds the older one, else why pass it in the first place?
Well, gee, maybe because Roe had struck down WI's existing abortion laws, so they made the most restrictive law they thought they could get away with?
Does the newer law "allows it up to 22 weeks"? Or does it ban it AFTER 22 weeks.
Those are two very different things.
Passing a law that says "no abortion may be performed after 22 weeks" does not invalidate a law that says "no abortions may be performed"
Passing a law that says "abortion in WI is legal until 22 weeks, and illegal after that" would cancel the older ban.
But I'm guessing that's not what the newer law says. Correct?
The only argument is that the older statute imposes a Class H felony from the time of conception and the newer statutes impose a Class I felony. To that extent, the older statute conflicts with the newer statute, because it would make no sense to impose a higher penalty earlier in the pregnancy, and the more specific time period for when the abortion happened would mean the newer statute would apply for abortions that happened later.
I see where David Hogg has tweeted that he's not going to father any children because they can't be aborted. I don't quite follow his logic, but then again, he's an idiot.
If the Wisconsin Supremes mirror the US Supremes 6-3 Roe decision, in that SCOTUS returned the issue back to States legislatures to decide, the Wisconsin Supremes will not grant the motion to block the lawful ban. They will give the legislature a first bite at the apple?! (If that's a good metaphor for what I'm trying to say)
"Later, when one party or the other gets full control of the process, they can move the number down or up."
Althouse is no Nazi, but considering that each "number" represents a week of a human life I have to say that that statement sounds like something one might have heard at an Einsatzgruppen staff meeting.
"It would be nice if the governor could show a little leadership and work with the Republican legislature to adopt abortion laws acceptable to the majority WI voters."
Last week he convened a special session to handle this ahead of the ruling. Republican immediately dismissed the session and went home.
It doesn't seem like the leadership issue is with the Governor, it is firmly in the hands of Legislative leaders who are refusing to consider legislation.
They will likely remain out of session all summer. It might be fun to complain about Evers, but Vos is refusing to do anything.
And there is no way Wisconsin Republicans are ever going to propose allowing abortion in any form. Anyone who has been paying attention know that.
Ann Althouse said...
Later, when one party or the other gets full control of the process, they can move the number down or up.
Only if a judge lets them. Any change to an abortion law once passed that makes it the tiniest bit more restrictive will be met with unlimited lawfare. So it will only ratchet one way regardless of what "the people" actually want.
minnesota farm guy said...
It would be nice if the governor could show a little leadership and work with the Republican legislature to adopt abortion laws acceptable to the majority WI voters.
And which one of those abortion laws is acceptable to the majority of WI voters? Or for that matter, the voters of any state in particular? Set a number, as Ann said--- what number and why?
Between now and November the best thing Republicans can do to keep their voters from abandoning them is- absolutely nothing. If Republican legislators negotiate with teh governor and pass any abortion legislation a significant portion of their voter base is going to sit at home on election day. It is so easy for pols to forget that they are supposed to serve the interests of the voters not just their own personal interests. The interests of which voters? The ones who support them or the ones that never will no matter what?
There is no actual compromise position. Or to use an analogy:
I'm going to kill you.
How about we compromise and you only beat me half to death?
Is that a reasonable compromise? Of course not.
I want to kill this baby inside of me.
How about we compromise....
Where's the compromise if that baby inside is you? The anti-abortion no matter what crowd views it exactly like that.
@ n.n.
For the liberals. Nazi applies precisely to whom they mean it to apply, neither more nor less.
a reason for the legislature to delay in writing a new statute that sets exactly the terms that we Wisconsin citizens want now
The Wisconsin legislature has not delayed at all. It has not sit on its hands for 100 years. It has been engaged on abortion as the representatives of what citizens want repeatedly. In the 1980s and 1990s and as recently as 2015, when it enacted a PROHIBITION.
The legislature also acted in 2011 in repealing one abortion law, a law that imposed criminal penalties against women who have abortions. So it knows how to repeal past laws, including the 1849 as amended in the 1950s. So it could have repealed the complete ban in 2015, but it did not.
There has been no oversight or failure to engage by the people's representatives. They have been engaged in abortion -- and they have intentionally kept the old law that protects prenatal human life.
There are all sorts of laws that are on the books that are ignored for political reasons. As BarrySanders20 points out, adultery is a felony.
I live in a state where it is supposedly legal to grow and possess cannabis. My son until quite recently was employed by various corporations (Canadian registered, if I am not mistaken) growing and selling cannabis "legally" in another state. Cannabis is a class 1 narcotic under federal law.
I am not sure exactly how that works, but at the very least someone is declining to enforce federal cannabis laws. Certainly the US Congress hasn't taken any steps to legalize cannabis under federal law.
No one is going to put women in jail for getting abortions. The clinics will be shut down and the abortion Doctors will lose their license.
As to whether any abortions will be permitted, or if made legal, where the line will be drawn in up the legislature and the Governor. No doubt the winsconsin Supreme court Judges will get themselves involved and make themselves the final artbitrors. After all, just because the SCOTUS decided there was no abortion right in the US constitution, that doesn't mean the liberal/left STATE judges won't find some right to abortion in the State laws/constituion.
Never has the actual wording of any law/constitution prevented liberal/left judges from "making it up" and imposing their will on their subjects, whoops, I mean citizens under their jurisdiction. So, while Abortion rights are dead at the Federal level, look for the state judges to spring into action.
Next time you folks in Wisconsin sit outside in the bitter cold staring at the frozen lakes and feeling a sense of progressive superiority over the rest of the country while contemplating your idiotic recall process, your dysfunctional Supreme Court, your clown show of a legislature, and your pencil-necked, assistant principal Governor, you might pause to remind yourself that Mississippi - Mississippi! - wrote and passed a law that recognized and instituted a reasonable compromise on the issue, took it the SCOTUS, defended the law, won the case, and changed the country.
Up your game!
all together now
Its a threat to our democracy
its getting old
The doctrine of desuetude declares statutes void. How is this different from declaring the same statute unconstitutional?
The legislature has decided where to draw the line as recently as 2015, when it last enacted legislation on the subject and could have, but did not, repeal the existing line, which is at conception. And it decided to keep that line in the last few days when it explicitly declined the invitation to alter that line.
"Its a threat to our democracy"
Whenever I hear that, I understand it to mean that some Democrat, somewhere, didn't get what he wanted.
So Wisconsin's state legislature chose not to repeal its old abortion law which had been struck down by Roe v. Wade as unconstitutional. (This isn't surprising since Roe sapped the repeal movement of all its strength and urgency.) But Roe merely forbade the Wisconsin law’s enforcement for the next fifty years. And, now, Dobbs automatically revives the Wisconsin law.
Why the automatic revival? Seems like automatic revival would be a violation of the due process clause (lack of fair warning and arbitrary administration of the law)?
boatbuilder said...
There are all sorts of laws that are on the books that are ignored for political reasons. As BarrySanders20 points out, adultery is a felony.
Maybe ignored in WI and CA, and possibly even the other 48 states and DC.
UCMJ Article 134
The maximum punishment according to Article 134 (Adultery) is a Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for one year.
Prosecuted all the time. I recall when stationed in Sandyeggo a young Marine who hired a civilian defense attorney rather then using his appointed judge advocate. The civilian attorney opened up his argument "This is California. No prosecutor in the state will prosecute an adultery charge, and no judge will allow it to go to trial." Immediate rebuke by the judge- "This is not the state of California, this is the United States Marine Corps on a Marine base. We enforce our laws." The young Marine IIRC did not fare well. You don't screw another Marine's wife while he's on deployment. Breaks down unit morale.
The clinics will be shut down and the abortion Doctors will lose their license.
Are you kidding? The doctors who lose their license these days are the ones who doubt the vaccine or who prescribe Ivermectin.
Apparently the named defendants are the Speaker of the House, the President of the Senate and the Majority Leader of the Senate. None of whom are proper defendants, none of whom have anything to do with enforcement of the laws.
The complaint should be summarily dismissed.
Yancey Ward said...
There are two laws in Wisconsin regarding abortion- the one that outlaws it outright, and the one that allows it up to 22 weeks gestation. The two laws are contradictory...
Does the second law explicitly allow abortions up to 22 weeks, or does it only criminalize them after 22 weeks? If the latter than the laws are not in conflict. If you have an abortion before 22 weeks you violate the older law. If you have one after 22 weeks you violate both.
Mark said...
You mischaracterize the law. It does NOT alllow abortion up to 22 weeks. Rather, it DISALLOWS abortion after, not 22 weeks, but 20 weeks or "viability" (Wis. Stat. §§ 253.107 and 940.15)
I don't have time to look. but if this is correct, then Yancy you're wrong
Mark said...
"It would be nice if the governor could show a little leadership and work with the Republican legislature to adopt abortion laws acceptable to the majority WI voters."
Last week he convened a special session to handle this ahead of the ruling. Republican immediately dismissed the session and went home.
It doesn't seem like the leadership issue is with the Governor, it is firmly in the hands of Legislative leaders who are refusing to consider legislation.
Really? Then I guess you'll have no problem giving us a link to the new law that Evers proposed when he requested the special session. Right?
I did a search on Duck Duck Go for
evers proposes abortion law
It told me
Not many results contain proposes
Then it gave me a whole bunch of hits for Evers trying to get rid of the current law
So, Evers called a special session before Dobbs came out, and demanded that the Republicans create a new abortion law, for him to attack. So they quite problerly told him to FOAD
Dobbs is out, Roe is gone, Abortion is now illegal in WI
Has Evers proposed a new law? Have Democrats in the State Legislature proposed a new law?
Or is it the case for all of them that they want the Courts to do their work for them?
That they want to campaign and fundraise on fear, NOT to solve something that they claim is a problem.
Because their only acceptable "solutions" are completely out of step with what the people of WI want.
IMO, the proper GOP response is "we will not consider any changes to current abortion law until the Democrats produce their starting position in Bill form.
I suppose it's too much to ask the Legislature to legislate. I know, I know: Republicans pretty much tabled the Special Session Evers called....before Roe was overturned. Second or Third time would be the charm I suspect.
Breyer retires! Biden thinks it's the end of his ice cream ration.
William Tyroler,
+1000.
Evers called a special session "to repeal" the 1849 act. From what I can tell he did not offer an alternative to the 1849 law and from what I could read in the papers the same absolutists continued to posture without an alternative to begin negotiating about. When I said "leadership" I meant the offering of an alternative to a total ban and signaling a willingness to negotiate. I have no axe to grind about Evers -he looks like a first class wimp to me- but he could lead on this issue and make life difficult for the R legislature rather than being an absolutist and allowing the Rs to be the same.
The 'collapse' of Roe v. Wade. Interesting word, collapse. Like Roe was some old decrepit barn in the country that finally collapsed.
Not to be construed to indicate that I favor baby-killing, but since the state of Wisconsin may soon be surrounded by all neighboring states permitting abortion, look for self-loving abortion nutcases to take the easy way around the 19th-century law banning abortion in the Badger State.
Just the Pill and Abortion Delivered, a Minnesota nonprofit organization dedicated to improving abortion access, plans to deploy a fleet of mobile clinics to park along state borders, starting in Colorado, but Wisconsin can soon expect abortion-servicing on major routes into Illinois, Iowa, Minnesota, and possibly Northern Michigan.
The medication abortion mobile clinic is outfitted with technology for telehealth consultation and secure delivery of medication, where it is legal, which excludes Wisconsin.
The organization's second, larger clinic will provide patients with a mobile clinic-based procedural abortion, a first in the U.S.
That clinic will serve patients who are not eligible for medication abortion (over 11 weeks) or who choose procedural abortion for other reasons.
Expect Planned Parenthood to join the mobile surgical clinic party as well - they need to replace lost sales volume.
Aid Access has European doctors who can provide the prescriptions for abortions with the medicines mifepristone and misoprostol that are mailed from a pharmacy in India for $110.
I suppose it's too much to ask the Legislature to legislate.
They DID legislate. For the fourth or fifth time, they explicitly declined on multiple occasions to repeal the law which protects unborn life from conception. Don't pretend that they didn't do anything. They intentionally left the law on the books.
Thank you for this William Tyroler.
It was a Labour Government in the UK in 1967 that passed the Abortion Act. So left Governments are quite capable of passing legislation on this issue. Why don't Democrats in states without abortion rights legislation get to work drawing up proposals to be legislated?
Six weeks to viability of baby and granny, an equal right to self-defense through reconciliation, and a policy to mitigate the progress of human rites (e.g. wicked solution) performed for social, redistributive, clinical, and fair weather causes.
"Can he grant clemency to and individual for all past and future abortions' performed?"
For the good of the state and at my command, the bearer has aborted who he has aborted. s/ Gov. Evers.
Here's numbers from the latest Economist/YouGov poll, it included a number of questions on abortion and was conducted entirely after the Supreme Court’s recent Dobbs decision was announced.
On the subject of abortion, at what point in a pregnancy do you think abortions should be banned?
Abortion should never be banned 28%
Banned after six months (the second trimester) 7%
Banned after 15 weeks 12%
Banned after three months (the first trimester) 16%
Banned after six weeks (when a fetal heartbeat can be detected) 18%
Banned after conception (always banned) 20%
That (by my math) is 54% (16+18+20) say Abortion SHOULD BE BANNED after the 1st trimester (13 weeks?)
And that is 66% (12+16+18+20) say Abortion SHOULD BE BANNED after 15 weeks.
A Grand Total of 28% agree with the current Democrat position (Abortion is something to brag about)
(If my math is right).. A MAJORITY of DEMOCRATS DISAGREE with the current democrat position!
GO DEMOCRATS!!!! VACUUM UP THOSE KIDS!!!
What you are going to see is grandstanding by the Democrats- only offering up bills and the votes if abortion is freely available for the entire 9 months- it is what the Dems in D.C. did, and it is what any bill brought to Madison will do, too, if it is offerred up by the Democrats.
If I were a Republican leader in Madison, I would immediately put up a bill that is identical to the Mississippi statute that was just upheld by SCOTUS tied with explicit repeal of the 19th century law. I would bet that Democrats in the legislature will vote against it, and Evers would veto it if it passed. However, Republicans aren't known as the dumb party for no reason.
a fleet of mobile clinics to park along state borders
The back alleyists never went away. And they were never thought of by the pro-abortion activists as the bad guys. Instead they were comrades.
If I were a Republican leader in Madison, I would immediately put up a bill that is identical to the Mississippi statute that was just upheld by SCOTUS tied with explicit repeal of the 19th century law.
So you would EXPAND abortion in Wisconsin. You would declare war on the pro-life voters.
Republicans aren't known as the dumb party for no reason
No, they are known by pro-lifers as the party that cannot be fully trusted.
In reading through this long thread of comments I see that some commenters have grasped the truth: Post-Dobbs, abortion is now a political issue. And Wikipedia tells me that in Wisconin this is an ELECTION year, the Governership and most legislative seats are up in November. The Republicans (presumptively pro-life) control both houses of the legislature, and a Democrat Governor (I assume pro-abortion -- I don't have to say "pro-choice" anymore) is running for reelection. Why would anyone expect the parties to agree on a resolution of the abortion question before the election?
"Later-enacted laws impliedly repeal earlier-enacted laws where the earlier-enacted law conflicts with the later-enacted law[.]" Sec. 940.15 appears to be irreconcilable with the earlier 940.04, and a court could tenably find implicit repeal.
Circuit court, maybe. WI Supreme Court, unlikely.
Also seems to me the WI legislature could moot the lawsuit by repealing the later law and leaving the earlier law on the books. As far as I know, the governor has no veto power or any say at all in whether a law gets repealed. Then the court need not speculate about what the legislature intended implicitly by its later action. The express action of removing the allegedly irreconcilable later law would answer the question.
if/when Law is a Ass
[. The phrase comes from Charles Dickens' novel Oliver Twist: "The law is a ass—an idiot."]
should lawyers wear it or try to take it off "asshats"
Bender, taking a hard line is going to fail, ultimately. There is no real support for abortion rights past 3 months, but there is no majority support for no abortion at all, either. There will eventually be a compromise worked out that limits it to something like 15-20 weeks in a large part of the country, with only a few states holding the hard line, and Wisconsin ain't one of those states- it is a blue state that has voted Republican once in the last 38 years.
minnesota farm guy said...
Evers called a special session "to repeal" the 1849 act. From what I can tell he did not offer an alternative to the 1849 law and from what I could read in the papers the same absolutists continued to posture without an alternative to begin negotiating about. When I said "leadership" I meant the offering of an alternative to a total ban and signaling a willingness to negotiate. I have no axe to grind about Evers -he looks like a first class wimp to me- but he could lead on this issue and make life difficult for the R legislature rather than being an absolutist and allowing the Rs to be the same.
No, Evers can not lead. Neither can any other Democrat up for election this year.
Because their base, and their donors, demand abortion until birth, if not after.
Which is why I think the GOP course should be: "We'll consider any bill that the Democrats offer, but they're going to have to offer up a bill to get the ball rolling"
Yancy, is the issue just that you're pro 1st trimester abortion, and therefore want the GOP to implement your agenda?
Because you're usually a pretty smart guy, but telling the GOP they should negotiate against themselves is pretty much always the dumb choice
Evers isn't willing to negotiate in good faith, and neither are any of the other Democrats. Until that changes, only a moron negotiates with them
The GOP State Legislature passing a "abortions allowed in the 1st trimester" bill, only to have it vetoed, gies them the world where they've relally pissed off their base (38% of all voters, which means more than 1/2 of GOP voters, want it banned heartbeat or earlier after all, while the AG is refusing to prosecute anyone, and the Gov is granting clemency.
That's the kind of move that convinces your voters to stay at home
Now THAT would be "stupid" / "dumb")
"As far as I know, the governor has no veto power or any say at all in whether a law gets repealed."
To repeal a law I think you have to pass a law saying you are repealing that law. That law can be vetoed.
BarrySanders20 said: "seems to me the WI legislature could moot the lawsuit by repealing the later law and leaving the earlier law on the books. As far as I know, the governor has no veto power or any say at all in whether a law gets repealed."
Chris Lopes has it right: "To repeal a law I think you have to pass a law saying you are repealing that law. That law can be vetoed."
Wisconsin Constitution, Art. IV § 17 provides, "No law shall be enacted except by bill." And, Art. V § 10 provides, "Every bill which shall have passed the legislature shall, before it becomes a law, be resented to the governor." No exception is made for repeals of laws, so that a repeal would have to be by bill, passed and sent to the governor for signature or veto. Still, BarrySanders20 is right that repeal would moot out the AG's attack. But then we'd be left with 940.15, and severe limits on post-viability abortions -- arguably an acceptable compromise among the electorate generally, but acceptable to either party's base? I'm not so sure, which makes me doubtful in the first instance that Republican legislators would pass a bill repealing 940.04. It's a good idea though.
On an ethical level, how can the Wisconsin Attorney General sue Wisconsin to prevent enforcement of the state's laws? Isn't the Attorney General obligated to defend the laws of Wisconsin? Or is the Attorney General suing in his personal capacity?
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