Federal judge refuses to let Republican legislators join lawsuit challenging Wisconsin abortion laws
Patrick Marley
MADISON - A federal judge Tuesday refused to let Wisconsin lawmakers intervene in a lawsuit challenging some of Wisconsin's abortion laws.
Planned Parenthood of Wisconsin in January sought to overturn laws that prevent nurses from performing abortions and limit the ability of women to obtain medications that induce abortions.
RELATED:Republican legislators seek to intervene in lawsuit over Wisconsin's abortion laws
Democratic Attorney General Josh Kaul is defending those laws, but Republican lawmakers have said they don’t trust him and asked U.S. District Judge William Conley to let them intervene in the case.
GOP lawmakers said they didn't believe Kaul would defend the laws as ardently as possible because he had been endorsed by an arm of Planned Parenthood; had joined other states in challenging federal regulations barring family planning clinics that receive government funding from referring patients to abortion clinics; and had withdrawn friend-of-the-court briefs filed by his Republican predecessor in two cases challenging abortion restrictions in other states.
Conley said those concerns from Republicans weren't enough to given them the right to join the case.
"Even viewed collectively, this litany fails to demonstrate (or even come close to demonstrating) either gross negligence or bad faith," Conley said, referring to the standards that he found must be met for the Republican lawmakers to establish they had a right to intervene in the case.
Lawmakers had told Conley that if he didn't believe they had a right to join the case, he should give them permission to join it anyway so they could make their arguments for upholding the abortion regulations.
Conley declined to do that, writing that their arguments were no different from the ones offered by Kaul.
"To allow intervention would likely infuse additional politics into an already politically divisive area of the law and needlessly complicate this case," Conley wrote.
Senate Majority Leader Scott Fitzgerald of Juneau said legislative leaders were reviewing whether to appeal the decision that's keeping them out of the case.
In court filings, GOP lawmakers in part argued they should be allowed to join the case under a law they passed in December that says they can automatically intervene in cases challenging the constitutionality of state laws. The measure was included in a collection of other lame-duck laws aimed at curbing the powers of Kaul and Democratic Gov. Tony Evers.
“The state of Wisconsin itself has made the sovereign judgment that the attorney general does not adequately represent the Legislature’s interests in cases involving constitutional challenges to state statutes,” Jeffrey Harris, an attorney hired by the Legislature, wrote in one filing.
But Conley found the Legislature couldn't join the case on the basis of the state's intervention statute alone. To join a federal lawsuit, it also needs to meet standards set in federal rules and it didn't do so in this case, he determined.
Planned Parenthood's lawsuit contends advanced practice nurses — such as nurse practitioners and nurse-midwives — should be able to perform certain types of abortions. The lawsuit also asks to make it easier for women to obtain medication that causes abortions, including by allowing them to consult with doctors and nurses through video links.
Some regulations the group is challenging have been on the books since 1974. Others were approved as recently as 2011.
GOP lawmakers hired the Virginia law firm Consovoy McCarthy Park of Arlington to assist them in the case. Taxpayers are paying the firm $500 an hour for its work.
Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.