Don’t let the title scare you, I promise this is interesting and (I hope) I’ve made it approachable even for people without a legal-academic background. I’ll quickly include some background on this paper before you dive in.
Background and Summary
Since 1849, Wisconsin has had a law that almost entirely banned abortions for any reason. When Roe v. Wade was decided in 1973, this law was declared unconstitutional. For the next 49 years this abortion law could not be enforced, but it remained a part of Wisconsin law. In 2022, in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned Roe v. Wade. Suddenly, the 1849 abortion law, having been unconstitutional and unenforceable for almost a third of its existence, was suddenly enforceable again. Maybe.
This paper argues, with fancy academic words, that the law should not be able to suddenly become enforceable once more without first being voted on in the state legislature and becoming law. After all, it was dead for many, many years, and a law which is unconstitutional should not continue to exist, lying in wait for its moment to surprise a future generation which had no hand in its creation.
Wisconsin Attorney General Josh Kaul agrees, and filed a lawsuit to declare that the 1849 law should remain unenforceable as applied to abortions. At the time I publish this, the lawsuit is pending in Dane County Circuit Court, held up by motions to dismiss. It may very well reach the Wisconsin Supreme Court.
I wrote this paper in Fall of 2022 for my 3L class, State and Local Government Law.