Attorney general candidate Eric Toney criticizes Josh Kaul for pledging not to enforce Wisconsin's abortion ban if Roe v. Wade is overturned

Attorney General Josh Kaul, left and Fond du Lac County District Attorney Eric Toney, right
Attorney General Josh Kaul, left and Fond du Lac County District Attorney Eric Toney, right
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Republican attorney general candidate Eric Toney said Wednesday he would enforce a potential ban on abortion in Wisconsin if Roe v. Wade were overturned.

It follows comments from Democratic Attorney General Josh Kaul, who said he would not use state Department of Justice resources to investigate or prosecute doctors who violate an 1849 Wisconsin law banning abortion in almost all cases.

The state law would go back into effect if the U.S. Supreme Court votes to strike down Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Politico on Monday published a leaked draft of a ruling indicating the court would overturn the decision. The court has yet to issue its opinion, which is expected over the summer, and the language could change from the draft form leaked this week.

Toney, who is the Fond du Lac County district attorney, said Kaul should not "pick and choose" to enforce the laws he agrees with.

"We have an attorney general that has effectively said he's going to abdicate his responsibility because he doesn't like the law," Toney said at a news conference Wednesday in Milwaukee on public safety. "That makes him unfit to hold that office."

More: Leak of draft Supreme Court opinion on Roe v. Wade transforms Wisconsin's political races ahead of 2022 elections

More: PolitiFact Wisconsin abortion-related factchecks

Kaul on Tuesday said his office would not help district attorneys investigate violations of a ban or provide special prosecutors for such cases.

"I believe that our investigative and prosecutorial resources in Wisconsin should investigate and prosecute things like violent crime and drug trafficking and not be diverted from those investigative and prosecutorial needs to be used to go after people for abortions," Kaul said.

Toney said he would enforce the law as passed by the Legislature "because that is the responsibility of our attorney general."

"If we don't like the law, then we work with our Legislature to try and change the law, not injecting our partisan political beliefs as our top cop," he said.

More: Here are Wisconsin’s abortion laws and how they would be affected by Roe v. Wade decisions

Toney also said he would direct resources to district attorney's offices if they are needed.

"If they need guidance or support, we're going to provide that," he said. "The attorney general is statutorily obligated to give that guidance to law enforcement and to prosecutors."

Toney did not specify in which cases he would be willing to bring charges against those who perform abortions, noting the Supreme Court has not yet issued its ruling.

"This may be a harbinger of what will come, but let's see what happens before we go down those hypotheticals," he said.

The ban on abortions has been sidelined for nearly 50 years because of Roe.

It allows for the prosecution of those who perform abortions except in cases where two physicians determine the abortion is necessary to save the life of the woman. The ban does not include exceptions for rape or incest.

While those who perform abortions could be charged, the woman could not. Those found guilty could be imprisoned for up to six years and fined up to $10,000. If the fetus is beyond about 16 weeks of development, the maximum penalty is more severe — a prison term of 15 years and a fine of $50,000.

If a ban were to go into effect, it would fall to prosecutors to determine when and how to enforce it. Wisconsin has abortion clinics in Milwaukee, Madison and Sheboygan.

Toney faces former state Rep. Adam Jarchow of Balsam Lake and attorney Karen Mueller in the Aug. 9 Republican primary. The winner will face Kaul in November.

In a statement Tuesday, Jarchow also criticized Kaul for saying he would not assist with enforcing an abortion ban.

"Josh Kaul’s unwillingness to enforce the laws of Wisconsin should disqualify him from the job of Attorney General," his statement said. "As a pro-life father of two, I will always support the right to life."

Patrick Marley of the Journal Sentinel staff contributed to this report.

Contact Sophie Carson at (414) 223-5512 or Follow her on Twitter at @SCarson_News.

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This article originally appeared on Milwaukee Journal Sentinel: Attorney general candidate Eric Toney would enforce abortion ban