Abortion Weighs Heavily On the Race for Wisconsin Attorney General

An 1849 state law bans abortion in nearly all cases. The candidates disagree over whether it should be enforced.

Connecticut, Minnesota, Vermont, and Wisconsin hold primary elections today. One race in particular, for Wisconsin's attorney general, could be a meaningful test case for abortion rights.

Josh Kaul, the Democratic incumbent, won his first term in 2018's "blue wave" by less than a point. He is running unopposed for his party's nomination. Of the three Republican candidates, the two apparent front-runners are Adam Jarchow, a former member of the State Assembly, and Eric Toney, the district attorney of Fond du Lac County.

Dobbs v. Jackson Women's Health Organization, the Supreme Court decision that overturned Roe v. Wade in June, relegated the issue of abortion to the states. As Reason's Jacob Sullum has pointed out, Wisconsin is one of five states where new abortion restrictions "are unlikely in the short term but are possible in the longer term, depending on electoral outcomes or judicial decisions."

The uncertainty stems from an 1849 state law that prohibits abortion in all cases except to save the life of the mother; some legal experts believe the law was effectively overturned by more recent bills. Kaul said in December that if Roe were overturned, he would not investigate or prosecute violations of the 1849 restrictions. And a week after the Dobbs decision, Kaul filed a lawsuit seeking to overturn the law formally.

Meanwhile, Jarchow and Toney have each indicated that if elected, they would enforce the abortion ban as written—which presumably means without exceptions for rape or incest.

Kaul's refusal to prosecute may not actually be consequential: Typically, most prosecutions are brought by district attorneys at the county level, not by the state attorney general. But in liberal enclaves whose district attorneys refuse to enforce the state ban, an Attorney General Jarchow or Toney would have the authority to prosecute a doctor or clinic who performed an abortion.

Last week, when traditionally deep-red Kansas had an outright abortion ban on the ballot, a clear majority of Kansans rejected the measure. It remains to be seen if the issue will similarly drive Wisconsinites to the polls in November. No matter which Republican wins the nomination today, the race for attorney general is shaping up to be a proxy fight over abortion.