The Wisconsin supreme court on Tuesday agreed to hear a high-profile abortion case brought forward by Planned Parenthood after last week’s apparent draft order leak indicated the court would take the case.
The state supreme court voted 4–3 to hear Planned Parenthood of Wisconsin’s lawsuit, which seeks for abortion access to be protected under the state constitution. The court’s liberal majority voted to accept the case, while the three conservative justices voted against accepting it.
Last Wednesday, nonpartisan investigative news outlet Wisconsin Watch obtained a copy of the draft order. This prompted conservative chief justice Annette Ziegler to call for a police investigation into how the document was “ostensibly leaked to the press,” she said. Ziegler added that all seven justices, including herself, condemned the breach.
It remained unclear at the time which justices voted for or against taking up the case, as the draft order did not include any concurring or dissenting opinions. The court flipped to a new 4–3 liberal majority last year after Justice Janet Protasiewicz handily won a seat by campaigning on abortion access in the state.
Conservative members of the court accused their liberal counterparts of being more concerned about playing politics than upholding the law.
“The people of Wisconsin never consented to unchecked rule by four lawyers who continue to disgrace the institution of the judiciary by entangling this court in policy issues constitutionally reserved to the people and their legislative representatives,” Justice Rebecca Grassl Bradley wrote in her dissent of the Planned Parenthood case. “This case again marks the court’s perilous entrance into the political arena where it does not belong and further delegitimizes this court as a nonpartisan institution.”
On the other hand, the liberal majority argued that the court is supposed to decide crucial questions related to the state constitution.
“Regardless of one’s views on the morality, legality, or constitutionality of abortion, it is undeniable that abortion regulation is an issue with immense personal and practical significance to many Wisconsinites,” Justice Jill Karofsky wrote in defense of taking the case.
In its February suit, Planned Parenthood of Wisconsin argues that the Wisconsin constitution should enshrine abortion access and protect doctors who perform abortions from being criminalized. The abortion provider’s argument is based on the state constitution’s equal-protection clause, which “encompasses the right to make one’s own decisions about reproductive health care, including whether or not to carry a pregnancy to term and a physician’s right to provide appropriate abortion care.”
The case stems from Democratic Wisconsin attorney general Josh Kaul’s lawsuit, which challenges an 1849 criminal abortion statute that has been widely interpreted as an abortion ban. However, a Dane County judge ruled late last year that the state law does not explicitly prohibit abortions — only that it prohibits a person from attacking a woman in order to murder her unborn child.
Displeased with the judge’s ruling, Republican Sheboygan County district attorney Joel Urmanski subsequently appealed directly to the state supreme court without waiting for a lower appellate court’s ruling. In turn, Planned Parenthood of Wisconsin sued Urmanski and asked the state supreme court to overturn the 175-year-old law.
Kaul filed litigation in June 2022, just after the U.S. Supreme Court overturned Roe v. Wade with its landmark Dobbs decision. The state supreme court’s leaked draft order did not indicate whether Urmanski’s appeal of Kaul’s lawsuit would be heard. The separate abortion lawsuit was also accepted by the court’s justices on Tuesday, unanimously this time.
Oral arguments in both cases will likely be heard when the court’s next term starts this fall.