The state Department of Justice led by Attorney General Josh Kaul sent a letter this week to Assembly Speaker Robin Vos, Senate Majority Leader Devin LeMahieu, and Senate President Chris Kapenga in which it argued the GOP leaders are the appropriate parties to sue to nullify the state’s 1849 abortion ban because of the “Legislature’s repeated efforts to become involved in cases concerning the enforceability of state law” in the past. The letter comes as a response to a motion to dismiss filed by the Republican legislators in which they argued “legislators wield only the power to enact laws, not to enforce them.” DOJ called this motion “surprising” considering the Legislature’s previous efforts to become involved in cases related to the enforceability of state law. In the letter, DOJ went on to say it would “prefer not to name district attorneys as defendants,” but it would if necessary to ensure the resolution of the case is not delayed.
DOJ gave the lawmakers until Thursday to drop their motion to dismiss. “If you do not withdraw that argument, we will hold your clients to their position that they should not be involved-throughout this and any related litigation on this abortion-law question,” the letter reads. “Should your clients seek to intervene at any later point, we will object that your clients have waived any ability to be involved.” As of Friday morning, the motion to dismiss had not been dropped.
Kaul has argued the state’s 1849 abortion ban is unenforceable because more recent Wisconsin abortion laws supersede the 1849 statute.