MARISA WOJCIK.

>> ABORTION BAN OUTLAWS KILLING FETUSES BUT DOES NOT APPLY TO CONSENSUAL MEDICAL ABORTIONS.

THAT WAS THE RULING OF A DANE COUNTY JUDGE ALLOWING A LAWSUIT CHALLENGING THE BAN TO PROCEED.

THE JUDGE SAID THE LEGAL LANGUAGE IN THE BAN DOES NOT USE THE TERM "ABORTION," SO THE LAW ONLY PROHIBITS ATTACKING A WOMAN IN AN ATTEMPT TO KILL HER UNBORN CHILD.

QUOTE, THERE IS NO SUCH THING AS AN 1849 ABORTION BAN IN WISCONSIN, THE JUDGE WROTE.

HERE TO UNPACK THE LEGAL LANGUAGE AND IMPLICATIONS, EMERITUS PROFESSOR OF POLITICAL SCIENCE AND AFFILIATE FACULTY MEMBER OF THE UW LAW SCHOOL, HOWARD SCHWEBER.

THANK YOU FOR BEING WITH US.

>> MY PLEASURE.

THANK YOU FOR HAVING ME.

>> SO WHAT WAS YOUR REACTION TO THE CIRCUIT COURT RULING THAT SAID THERE IS, QUOTE, NO SUCH THING AS AN 1849 ABORTION BAN?

>> IT'S A VERY SHARP POINT, AND ONE THAT I THINK HAD BEEN LARGELY OVERLOOKED.

TO BACK UP, THERE ARE LONGSTANDING STATUTES AND COMMON-LAW PRINCIPLES THAT SAY, FOR EXAMPLE, IF THERE'S A CAR ACCIDENT IN WHICH A FETUS IS DESTROYED, THAT CAN BE A CRIME, EVEN IF ABORTION IS LEGAL IN THAT PARTICULAR STATE.

IF SOMEONE DELIBERATELY ATTACKS A PREGNANT WOMAN, THIS IS THE INSTANCE THAT THE JUDGE REFERRED TO, WITH THE INTENTION OF CAUSING A MISCARRIAGE, THAT'S BEEN A CRIME BOTH UNDER STATUTE AND ENGLISH COMMON-LAW FOR A LONG TIME BECAUSE IT'S AN INJURY TO THE WOMAN BUT HAS NOTHING TO DO WITH THE QUESTION OF VOLUNTARY ABORTION.

SO WHILE I THINK THAT SOME VIEWERS, IT MIGHT SEEM STRIENG TO STRANGE TO DRAW THIS ENGLISH LAW GOES BACK FOREVER THAT YOU CAN HAVE LEGAL CLAIMS HAVING TO DO WITH THE DESTRUCTION OF A FETUS WITHOUT NECESSARILY HAVING A LAW HAVING ANYTHING TO SAY ABOUT VOLUNTARY ABORTION AND THAT'S THE DISTINCTION THE JUDGE DREW, AND I THINK SHE'S RIGHT.

IN 1849 IN PARTICULAR, WHEN WE WERE MUCH CLOSER TO OUR COMMON-LAW ROOTS IN THE WAY THAT WE THOUGHT ABOUT THESE CATEGORIES, IT WOULD HAVE BEEN UNSURPRISING TO MAKE THIS DISTINCTION BETWEEN A TORTIOUS ACT OR A WRONGFUL ACT THAT CAUSES A MISCARRIAGE VERSUS AN ABORTION.

THESE ARE JUST TWO VERY DISTINCT AND DIFFERENT THINGS.

>> SO TO NON-LAWYERS, THOUGH, IT SEEMS SURPRISING BECAUSE THAT'S NOT THE ARGUMENT THAT JOSH KAUL LAWSUIT IS USING TO OVERTURN THE 1849 LAW.

RIGHT?

>> RIGHT.

WHICH IS INTERESTING.

AS I SAY, IT WAS A SHARP POINT AND IT TOOK MANY PEOPLE BY SURPRISE, PARTLY BECAUSE WE ARE SO UNUSED TO THINKING IN 19th CENTURY LEGAL CATEGORIES.

THIS IS ONE OF THE PROBLEMS WITH APPEALS TO HISTORY, WHETHER IT'S SUPREME COURT JUSTICE TALKING ABOUT ORIGINALISM OR SOMEONE TALKING ABOUT A 19th CENTURY LAW.

YOU HAVE TO PUT YOURSELF IN THE MIND FRAME AND THE UNDERSTANDING OF THAT PERIOD AND LEGAL UNDERSTANDINGS IN PARTICULAR WERE VERY DIFFERENT BACK THEN.

SO KAUL TRIES TO PUT THIS IN MODERN TERMS.

IT WAS A LAW OVERRULED BY THE ENACTMENT OF A LATER LAW.

I SUSPECTS, TO BE HONEST, THAT IN HIS OFFICE, IT JUST DIDN'T OCCUR TO ANYONE TO GO BACK TO COMMON-LAW PRINCIPLE UNDER THE 1849 LAW, SAYING WHAT WAS THAT PRINCIPLE ABOUT.

ATES CRIME PO PUNCH SOMEONE IN THE NOSE.

IT IS NOT AS A CRIME TO PUNCH YOURSELF IN THE NOSE.

I KNOW THAT SOUNDS LIKE A SILLY ANALOGY, BUT IN THOSE KIND OF BASIC LEGAL CATEGORICAL TERMS, THAT'S THE DISTINCTION WE'RE DRAWING HERE.

>> HOW DOES THE KAUL CASE GO FORWARD IN LIGHT OF THIS RULING?

>> WELL, FIRST OF ALL, THIS RULING WILL BE APPEALED, SO AT THIS POINT, ALL OF THE ACTIONS ON THIS RULING AND THE APPEAL UNDERS ITS LAW, BUT THE CASE WILL GO FORWARD AND RESULT, ASSUMING THE RULING STANDS, IN A DECLARATORY JUDGMENT, WHICH IS A STATEMENT BY THE COURT THAT, LOOK, THIS IS THE RULE, THAT DOCTORS, FOR EXAMPLE, CANNOT BE PROSECUTED FOR PERFORMING ABORTIONS UNLESS THOSE ABORTIONS ARE IN VIOLATION OF THE 1980s LAW.

IN OTHER WORDS, UNLESS THEY'RE POST-VIABILITY, AND WE WOULD AFFECT WISCONSIN BE RESTORED TO THE FRAMEWORK THAT WAS ESTABLISHED IN THE CASE CALLED CASEY, WHICH IS ONE OF THE -- CASEY AND ROE, THE TWO BIG ABORTION CASES.

EFFECTIVELY THE WISCONSIN STATUTE IMPOSED THE CASEY FRAMEWORK, AND UNLESS AND UNTIL THE LEGISLATURE CHANGES IT, THAT'S WHERE WE WOULD BE.

SO ONE WAY TO THINK ABOUT THIS IS THAT THE SUPREME COURT IN DOBBS OVERRULED ROE, SO THERE'S NO NATIONAL CONSTITUTIONAL RIGHT TO ABORTION BUT THEY SAID STATES CAN ESTABLISH RIGHTS TO ABORTION AS THEY SEE FIT, AND THE EFFECT OF THIS RULING IS WHAT WISCONSIN DID IN THE 1980s IS THE LAW IN WISCONSIN UNTIL SOMEONE CHANGES IT.

>> WHAT DOES THE TIME LINE LOOK FOR THIS CASE NOW IN DANE COUNTY TO GET TO THE SUPREME COURT WHERE DEMOCRATS, OF COURSE, WANTED TO LAND AFTER THE AUGUST 1st INVESTITURE OF LIBERAL JANET PROTASIEWICZ?

WHAT DOES THE TIME LINE LOOK LIKE?

>> THERE'S THE NORMAL TIME LINE AND AN EXPEDITED TIME LINE.

UNDER NEITHER SITUATION CAN I IMAGINE THIS CASE REACHING THE SUPREME COURT BEFORE AUGUST 1st.

>> PROFESSOR HOWARD SCHWEBER, THANKS FOR JOINING US.

>> MY PLEASURE.

>> FOR MORE ON THIS AND OTHER ISSUES FACING WISCONSIN, VISIT OUR WEBSITE AT PBS WISCONSIN