Wisconsin Attorney General Josh Kaul and others are using the courts in an attempt to constitutionalize a right to abortion. Josh Kaul won the ruling against an old law in Wisconsin against abortion, but Luke Berg of the Wisconsin Institute for Law & Liberty (WILL) tells AFN the attorney general then agreed the state Supreme Court should take the case.
"But then he also asked the court to add the question of whether that statute would be unconstitutional if it still applied," Berg explains. "So, he brought the case; he's the plaintiff who filed this case, he crafted his own claim, and he's now attempting to add a new claim to this case and transform it into a vehicle to create a constitutional right to abortion."
In an interview with NPR, Kaul explained that his argument is rooted in the language of the state constitution pertaining to liberty and equal protection – and in case law which grants protection to bodily autonomy. Berg, however, says it's "not even a close question" that the state constitution hints toward that.
"There's simply nothing in the text of the Wisconsin Constitution that provides a right to abortion," he states. "Like other constitutions, it has some provisions that sort of have high-level language. But there is no clear textual right to abortion."
WILL, along with the Thomas More Society, has asked to intervene on behalf of the state's major pro-life groups to present their argument against carving out a non-existent right to abortion in the Wisconsin Constitution. Kaul's attempt to do that "via judicial fiat" is not only wrong on the merits and procedurally barred, according to Berg, but also would create "a host of other problems."
