MADISON, Wis. (AP) — The Wisconsin Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.
The ruling came as no surprise given that liberal justices control the high court. One of them went so far as promising to uphold abortion rights during her campaign two years ago, and they blasted the ban during oral arguments in November.
The statute Wisconsin legislators adopted in 1849, widely interpreted as a near-total ban on abortions, made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy “an unborn child.”
The ban was in effect until 1973, when the U.S. Supreme Court’s landmark Roe v. Wade decision legalizing abortion nationwide nullified it. Legislators never officially repealed it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that abortion restrictions legislators enacted during the nearly half-century that Roe was in effect trumped the ban. Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.
Republican legislators also enacted laws under Roe requiring a woman to undergo an ultrasound, wait 24 hours before having the procedure and provide written consent, and mandating that doctors physically provide abortion-inducing drugs to women in their presence.
The majority ruling concluded that “the legislature impliedly repealed” the ban “by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions.”
“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebeca Dallet wrote.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the 1849 ban in court, arguing that it could coexist with the newer abortion restrictions, just as different penalties for the same crime coexist.
Dane County Circuit Judge Diane Schlipper ruled in 2023 that the 1849 ban outlaws feticide — which she defined as the killing of a fetus without the mother’s consent — but not consensual abortions. Abortions have been available in the state since that ruling but the state Supreme Court decision gives providers and patients more certainty that abortions will remain legal in Wisconsin.
Urmanski had asked the state Supreme Court to overturn Schlipper’s ruling without waiting for a decision from a lower appellate court.
The liberal justices all but telegraphed how they would rule. Justice Janet Protasiewicz had openly stated on the campaign trail that she supports abortion rights. During oral arguments, Dallet declared that the ban was authored by white men who held all the power in the 19th century, while Justice Jill Karofsky likened the ban to a “death warrant” for women and children who need medical care.
A solid majority of Wisconsin voters in the 2024 election, 62%, said abortion should be legal in all or most cases, according to AP VoteCast. About one-third said abortion should be illegal in most cases and only 5% said it should be illegal in all cases.
In a dissent, Justice Annette Ziegler called the ruling “a jaw-dropping exercise of judicial will.” She said the liberal justices caved in to their personal preferences and their Democratic constituencies, and accused Protasiewicz of promising to deliver Wednesday’s decision during her campaign.
“Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law,” Ziegler said.
Urmanski’s attorney, Andrew Phillips, didn’t immediately respond to an email Wednesday morning seeking comment. Kaul’s spokesperson, Riley Vetterkind, also didn’t immediately return an email.
Heather Weininger, Executive Director of Wisconsin Right to Life, called the ruling “deeply disappointing.” She said in a statement that the liberals failed to point to any statute that explicitly repealed the 1849 ban.
“To assert that a repeal is implied is to legislate from the bench,” she said.
Planned Parenthood of Wisconsin asked the Supreme Court in February to decide whether the 1849 ban was constitutional. The court dismissed that case with no explanation, drawing more criticism from Ziegler and conservative Justice Rebecca Bradley.
Democratic-backed Susan Crawford defeated conservative Brad Schimel for an open seat on the court in April, ensuring liberals will maintain their 4-3 edge until at least 2028. Crawford has not been sworn in yet and was not part of Wednesday’s ruling.
