♪ >> A DANE COUNTY JUDGE THIS WEEK HEARD ARGUMENTS WHETHER TO DISMISS ATTORNEY GENERAL JOSH KAUL'S LAWSUIT OVER WISCONSIN'S ABORTION STATUTES.

A NEAR TOTAL BAN ON ABORTIONS FROM 1849 IS BACK ON THE BOOKS AFTER THE U.S. SUPREME COURT OVERTURNED ROE VERSUS WADE.

THE ARGUMENTS IN COURT FOCUSED ON DISTRICT ATTORNEY JOEL URMANSKI'S MOTION TO DISMISS.

KAUL AND ATTORNEYS ON HIS SIDE ARGUE A MORE PERMISSIVE ABORTION LAW PASSED IN 1985 CONFLICTS WITH THE EARLIER STATUTE AND ALSO THAT THE EARLIER BAN IS NULLIFIED BY NOT BEING ENFORCED FOR SO LONG.

>> FROM OUR PERSPECTIVE, THE PLAINTIFF'S LAWSUIT IS UNPRECEDENTED IN WISCONSIN HISTORY.

THE PLAINTIFFS, THE ATTORNEY GENERAL AND OTHER STATE OFFICIALS AND AGENCIES HAVE SUED DISTRICT ATTORNEYS, OTHER STATE OFFICERS, OVER WHAT AMOUNTS TO A DIFFERENCE OF OPINION AND THE PLAINTIFFS A OWN DESIRE TO KNOW WHAT THE LAW IS.

>> THE PEOPLE NEED TO BE ABLE TO KNOW BEFORE THEY ACT WHAT IS AND IS NOT SUBJECT TO CRIMINAL SANCTION.

IT CANNOT BE THAT WISCONSIN LAW TELLS THE WISCONSIN PUBLIC THAT THE SAME FACTUAL ACTS ARE BOTH LAWFUL AND ILLEGAL AT THE SAME E TIME.

>> HERE TO UNPACK THIS COMPLICATED CASE, UW LAW SCHOOL PROFESSOR, THANKS VERY MUCH FOR BEING HERE.

AS YOU LISTEN TO THESE ARGUMENTS IN COURT, DID ANYTHING SURPRISE YOU?

>> THERE WERE NO MAJOR SURPRISES.

IT WAS A LENGTHY, RIGOROUS ARGUMENT.

THE JUDGE ASKED PROBING QUESTIONS OF BOTH SIDES.

JUDGE AND ATTORNEYS WERE ALL VERY WELL PREPARED.

IF THERE WAS A NOTABLE FEATURE OF THE CASE OR OF THE ARGUMENT, IT WAS JUST HOW MUCH UNCERTAINTY SURROUNDS WISCONSIN LAW RIGHT NOW.

THERE WERE NEARLY TWO HOURS OF ARGUMENT ABOUT HOW THIS INTERLOCKING WEB OF STATUTES FITS TOGETHER OR DOESN'T, AND I THINK THAT SPEAKS TO THE LEVEL OF UNCERTAINTY THAT THE STATE FACES.

THERE ARE OTHER STATES AROUND THE COUNTRY THAT HAVE SETTLING IN ONE WAY OR NEAR THE ISSUE OF ABORTION BUT WISCONSIN REMAINS IN LIMBO.

YOU HEARD THE PHYSICIAN ATTORNEY SPEAK TO THAT SAYING THAT THE PHYSICIANS ARE NOT PERFORMING CARE THEY WERE TRAINED TO PROVIDE NOT BECAUSE THERE'S BEEN A COURT RULING BUT ACTUALLY BECAUSE THERE HASN'T BEEN ONE.

>> GIVEN THE ARGUMENTS BEFORE THE COURT THIS WEEK, DID THEY RISE TO OUTRIGHT DISMISSING OF THIS LAWSUIT, IN YOUR MIND?

>> DEFENDANT URMANSKI IS CORRECT THAT THIS DOCTRINE THAT'S CALLED IMPLIED REPEAL IS PRETTY DISFAVORED BY COURTS.

THAT MEANS THAT COURTS WILL GENERALLY TRY TO RECONCILE AND HARMONIZE ALL THE PARTS OF A LAW AND GIVE EACH ONE MEANING, BUT THE PLAINTIFFS ARGUMENT IS THAT THAT CAN'T BE DONE HERE, AS YOU HEARD IN THE CLIP, THAT THESE ARE JUST IRRECONCILABLE.

TO THE EXTENT THAT THE COURT FINDS IT TO BE A CLOSE CASE, THAT WOULD CUT IN FAVOR OF NOT DISMISSING THE CASE BECAUSE AT THIS STAGE OF THE LITIGATION, THE CASE IS TO BE DISMISSED ONLY IF THE LAW IS CLEAR-CUT AGAINST THE PLAINTIFFS.

>> COUNTY JUDGE DISMISS THE CASE AGAINST THE DISTRICT ATTORNEYS AND NOT THE DOCTORS?

>> THE DOCTORS ARE INTERVENING AS PLAINTIFFS.

SO THE QUESTION THAT'S PENDING ABOUT THE PARTIES IS ABOUT WHETHER THE STATE PLAINTIFFS ARE ALSO INVOLVED ENOUGH IN THE PROVISION OF ABORTION THAT THEY HAVE LEGAL STANDING TO BE THERE, BUT THE DEFENDANTS WOULD REMAIN IN THE SUIT UNLESS THE MOTION IS GRANTED AND THE CASE CAN DISMISSED ON ITS MERITS.

>> CAN TWO STATUTES CONFLICT, AS IN THIS CASE, ARGUABLY, ONE OLDER AND ONE MORE RECENT?

>> THERE ARE, AND THAT'S A LOT OF WHAT THE PARTIES WERE DEBATING AT THE ORAL ARGUMENT, WHICH IS IS THIS SITUATION CLOSE ENOUGH TO THOSE CASES WHERE IMPLIED REPEAL HAS BEEN FOUND AND THAT'S SOMETHING THAT THE JUDGE WILL LIKELY BE SORTING OUT AS SHE PROCESSES THE BRIEFS.

>> THE JUDGE SUGGESTED IN THIS CASE, I IN THE, THAT THE 1849 LAW WAS FET I CRIED AND NOT ABORTION.

WHAT WOULD THAT MEAN FOR LAWSUIT OR ABORTION LAW IN WISCONSIN?

>> WHAT THE JUDGE AND THE PARTIES WERE REFERRING TO THERE WAS A 1994 WISCONSIN SUPREME COURT OPINION THAT REACHED THAT CONSTRUCTION OF A DIFFERENT SECTION OF THE SAME ABORTION LAW.

SO IT LOOKED AT A RELATIVELY SIMILAR SITUATION, TRYING TO RECONCILE NEWER STATUTES WITH OLDER ONES, AND IT SAID THAT THAT EARLIER STATUTE WAS JUST LIMITED TO THIS FETICIDE.

THE CASE IS NOT ON POINT BECAUSE IT WASN'T ABOUT THE SECTION OF THE STATUTE THAT'S AT ISSUE HERE, BUT THAT'S WHAT THE COURT AND THE PARTIES WERE REFERRING TO AND THE PLAINTIFFS' ARGUMENT IS THAT THAT IS APPROPRIATE FOR THE COURT TO FOLLOW IN THIS CASE.

>> SO JUST HEARING YOU SPEAK, THIS IS SO INCREDIBLY COMPLICATED, AND AS YOU SAID AT THE BEGINNING, THESE AREN'T THE KINDS OF ISSUES THAT OTHER STATES ARE ADDRESSING AROUND ABORTION LAW.

>> THAT'S CORRECT.

THERE ARE A LOT OF OTHER STATES IN WHICH THE QUESTION THAT'S BEEN PRESENTED TO THE COURT IS ONE ABOUT A CONSTITUTIONAL RIGHT TO ABORTION.

THIS CASE IS DIFFERENT BECAUSE IT'S ON THIS NARROWER AND MORE TECHNICAL ISSUE OF HOW THE STATUTE SHOULD BE CONSTRUED AND HOW ALL OF ITS PROVISIONS SHOULD BE WRITTEN TOGETHER.

>> SO DID THIS HEARING PROVIDE CLUES AS TO LEGAL ACTORS GOING FORWARD?

>> THERE WERE NO MAJOR NEW SIGNIFICANT DEVELOPMENTS, I THINK, AT THE HEARING.

THE ONE NOTABLE FEATURE WAS THAT, ALTHOUGH THERE IS AN ARGUMENT IN THE CASE ABOUT DISUSE, WHICH IS THAT THE 1849 PROVISION IS NO LONGER ENFORCEABLE BECAUSE OF A LONG PERIOD OF DISUSE, THAT WASN'T REALLY ADDRESSED AT THE HEARING.

MORE OF THE FOCUS WAS ON THIS DOCTRINE OF IMPLIED REFEEL AND IF THE MOTION TO DISMISS IS NOT GRANTED, THEY'LL MOVE FORWARD WITH THAT FIRST.

>> SO AS TO THAT DISUSE OF THE LAY, IS THAT A THING?

HAS THAT BEEN THROWN OUT BEFORE BECAUSE OF THAT?

>> IT'S A LEGAL CONCEPT THAT'S ROOTED IN IDEAS ABOUT FAIR NOTICE SO IF SOMETHING REALLY HASN'T BEEN ENFORCED FOR A LONG TIME, THEN PERHAPS IT WOULD BE UNJUST OR EVEN UNCONSTITUTIONAL TO JUST SORT OF REVIVE IT, BUT IT IS LIKE IMPLIED REPEAL.

IT'S NOT A DOCTRINE THAT'S COMMONLY APPLIED ENTER SO IN TERMS OF COURT PROCESS AND THE TIME LINE HERE, WOULD IT BE YOUR EXPECTATION THAT THIS WILL GO TO THE STATE SUPREME COURT, AND IF SO, WILL DO SO AFTER THE NEWLY ELECTED LIBERAL JUSTICE PROTASIEWICZ IS SEATED?

>> I THINK THE CASE WILL PROBABLY REACH THE WISCONSIN SUPREME COURT, BUT IT'S STILL AT A PRETTY EARLY STAGE.

THERE ARE A NUMBER OF STEPS THAT STILL NEED TO BE GONE THROUGH AT THE LOWER COURTS SO IT PROBABLY WON'T REACH THE WISCONSIN SUPREME COURT IN THE VERY NEAR TERM.