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Court likely to side with GOP in Wisconsin abortion case

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CHICAGO (CN) – Seventh Circuit judges were sympathetic Friday to arguments that the Wisconsin Legislature should be allowed to intervene in a Planned Parenthood challenge to state abortion laws because Republican lawmakers don’t trust the Democratic attorney general to properly defend the laws.

In March, Republicans legislators sought to intervene in the lawsuit filed by Planned Parenthood challenging Wisconsin laws allowing only doctors to perform abortions, and requiring women seeking abortion-causing drugs to see the same doctor on two separate visits.

The Legislature’s petition to intervene was filed shortly after Josh Kaul, a Democrat, was sworn into office as Wisconsin’s new attorney general, having won the November 2018 election against a Republican incumbent by a slim margin.

In a statement, Senate Majority Leader Scott Fitzgerald, R-Juneau, bluntly said the GOP-controlled Legislature sought to intervene because it did not trust a Democratic attorney general to vigorously defend the state’s abortion restrictions.

Kaul has a “lengthy history of forwarding Planned Parenthood’s agenda,” Fitzgerald said, and has not articulated “how he plans to defend Wisconsin’s pro-life laws.”

The attorney general was endorsed by Planned Parenthood, and received an $80,000 campaign contribution from the pro-abortion rights organization.

But U.S. District Judge William Conley denied the petition in April, saying, “To allow intervention would likely infuse additional politics into an already politically divisive area of the law and needlessly complicate this case.”

At the Seventh Circuit, the all Republican-appointed appellate panel was more receptive to the Legislature’s arguments during oral arguments Friday.

“The statute itself is a policy statement,” U.S. Circuit Judge Diane Sykes told Assistant Attorney General Brian Keenan, referring to a law passed in December permitting the Legislature’s intervention at any time in any action as a matter of right. “It establishes as a matter of Wisconsin policy that the attorney general cannot adequately represent Wisconsin in this class of cases.”

The law was passed by the Legislature as part of a package of bills giving more power to lawmakers and weakening the incoming Democratic governor and attorney general.

Keenan told the panel, “I believe it’s problematic for a state to be able to intervene in any case it wants.”

“Why is that problematic?” Sykes asked. “Why shouldn’t a federal court defer to the state’s determination of whether it has adequate representation?”

Keenan repeated Conley’s finding that allowing intervention would needlessly complicate the case before the district court.

But Sykes was not convinced.

“So litigation convenience should override state sovereignty?” she asked.

Keenan argued that the law should be applied on a case-by-case basis, not as a blanket rule allowing intervention in any case, and said intervention was only merited if a court found the attorney general failed in his duty to defend state law.

But all three judges on the panel were reluctant to ask a federal judge to assess the merits of an attorney general’s litigation strategy, especially in a heavily politicized case such as this one.

U.S. Circuit Judge Joel Flaum asked if an assistant attorney general could take the lead in the case in to assuage the Legislature’s fears, and questioned why the Legislature was unsatisfied with presenting its views to the court as an amicus.

But the Legislature’s attorney Jeffrey Harris insisted that GOP lawmakers needed “a proactive seat at the table,” especially in the event that the attorney general might consider settling the case.

“We think the Legislature has a right to be there,” Harris said.

U.S. Circuit Judge Amy St. Eve also sat on the three-judge panel.

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