State Supreme Court agrees to hear two abortion cases

Gun Rights

Conservative Justice Rebecca Bradley ripped the liberal majority’s decision to hear a case arguing the Wisconsin Constitution guarantees the right to an abortion, writing her colleagues “continue to disgrace” the judiciary by taking up issues best left to lawmakers.

Liberal Justice Jill Karofsky fired back that Bradley’s dissent “would be more at home in an ill-advised late-night rant on social media than in a judicial writing.”

Meanwhile, the court also agreed to hear a separate case challenging an 1849 law that had been interpreted as banning abortion in Wisconsin except to save the life of the mother.

The court’s granting of the petition to bypass in the challenge filed by Dem AG Josh Kaul to the 1849 law had been expected, and a draft order of the court’s decision to hear the suit filed by Planned Parenthood arguing there is a right to an abortion leaked last week. 

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But that draft order didn’t include the concurring opinion that Karofsky wrote or the dissents written by Bradley and fellow conservative Justice Brian Hagedorn. Both were included in Tuesday’s formal release of the 4-3 decision to take the case.

Planned Parenthood hailed the court’s decision to hear its suit, with Chief Strategy Officer Michelle Velasquez saying “Wisconsinites need and deserve resolution to the questions before the court” with continued attacks on abortion, contraception, gender-affirming care and in vitro fertilization.

Bradley and Hagedorn suggested the majority had already made up its minds on the issue after liberal Justice Janet Protasiewicz campaigned in 2023 on her belief that women have a right to an abortion.

Hagedorn accused the majority of “playing politics with its pet issues.”

He questioned why the liberal justices agreed to take original action in the suit before ruling in the suit Kaul brought challenging 1849.  He added the “court’s actions here are perplexing at best, and outcome-oriented at worst.”

Chief Justice Annette Ziegler joined his dissent.

Bradley, meanwhile, knocked Protasiewicz for her “ethically improper participation in this case” after her liberal colleague’s statements during the 2023 campaign and the financial support she received from Planned Parenthood, which brought the suit. Planned Parenthood Action endorsed Protasiewicz last year and ran ads backing her campaign.

“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,” Bradley wrote, targeting Protasiewicz, Karofsky, Ann Walsh Bradley and Rebecca Dallet.

Protasiewicz didn’t respond to the criticism. But Karofsky returned fire, accusing Rebecca Bradley of hypocrisy after her 2016 campaign sent a mailer touting her support from the NRA, suggesting it signaled her support of gun rights, and voted against tougher recusal rules when they were proposed to the court.

Karofsky dismissed complaints from her conservative colleagues of the court playing politics, writing it “seems to be a consistent refrain trotted out whenever the court makes a decision some of my colleagues dislike.”

She also responded to Hagedorn’s criticism by arguing there was nothing inappropriate or unusual about the court deciding to hear two cases at the same time that include related issues. Karofsky also slammed his “pet issues” comment.

“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,” she wrote. “Characterizing and reducing abortion to a ‘pet issue’ is disrespectful, demeaning, and derisive to adults and children who have been impacted by abortion laws and litigation.”

Rebecca Bradley also took a shot at the majority for rejecting a motion by anti-abortion groups to intervene in the Planned Parenthood case, writing it was “silencing every leading pro-life organization in the state.”

While Wisconsin Right to Life, Wisconsin Family Action and Pro-Life Wisconsin won’t be allowed to participate in oral arguments, they can still file briefs to make their points known.

The majority wrote the groups hadn’t met the burdens in state law to intervene.

“Merely propounding a general position on a topic of debate in society, lobbying for that position, or wishing to make legal arguments consistent with that position does not give them a legal claim or defense that is sufficient to support permissive intervention,” the majority wrote.

Hagedorn wrote a concurring opinion supporting the decision to deny the groups intervenor status, while Ziegler joined Bradley’s dissent that argued the majority only allows groups it agrees with to join cases.

“The majority’s astonishing unwillingness to consider the pro-life position in this matter will only erode what remains of the public’s trust in the legitimacy of any decision the majority makes in this case,” Bradley wrote.

The justices offered no comment on their decision granting Sheboygan County DA Joel Urmanski’s petition to bypass the appeals court to hear the challenge to the 1849 law.

A Dane County judge ruled the law applies to feticide and doesn’t ban consensual abortions in Wisconsin. Urmanski, one of the defendants in the suit, argues the law does apply to abortion and sought to have the state Supreme Court hear the case directly without first going to an appeals court.

Tuesday’s order denied a motion by Wisconsin Right to Life, Wisconsin Family Action and Pro-Life Wisconsin to intervene in the case.

It also laid out a briefing schedule with the first filings due in 40 days.

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