In a landmark decision on Wednesday, the Wisconsin Supreme Court struck down the state's long-standing 1849 abortion ban, asserting that the legislature's more recent abortion regulations have effectively superseded the antiquated law. This ruling, decided by a narrow 4-3 liberal majority, marks a significant moment in Wisconsin's judicial history, following the broader national debate that intensified after the 2022 U.S. Supreme Court decision overturning Roe v. Wade.
The 1849 statute, which rendered abortion a felony punishable by law unless performed by the mother or a physician in a medical emergency, was largely dormant following the Roe decision in 1973, which legalized abortion nationwide. However, the subsequent Dobbs ruling that overturned Roe led conservatives to argue for the reactivation of the old ban.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit in 2022, contesting this conservative interpretation. He posited that the state's legislature had enacted a series of abortion regulations that effectively nullified the 1849 law. Central to the court's deliberations was a 1985 statute that permitted abortions up to the point of fetal viability, in addition to other measures such as a 24-hour waiting period and consent requirements.
Justice Rebeca Dallet, writing for the majority, emphasized that the legislature's detailed legislation on abortion clearly indicated an intent to replace the 1849 law. "This case is about giving effect to 50 years' worth of laws passed by the legislature about virtually every aspect of abortion," Dallet wrote. She further noted that the legislature has the authority to modify abortion laws in the future.
The decision upholds a 2023 lower court ruling by Dane County Circuit Judge Diane Schlipper, which differentiated between voluntary abortions and criminal feticide—the latter involving forced acts leading to pregnancy loss. The court concluded that the 1849 law applies to feticide but not to consensual abortions.
Democratic Governor Tony Evers, who sanctioned the lawsuit, lauded the ruling as a defense of reproductive rights. "Today, the Wisconsin Supreme Court upheld that basic freedom," Evers stated, reinforcing his commitment to protecting individual reproductive healthcare decisions.
The ruling, however, sparked dissent among conservatives. Justice Annette Ziegler criticized the majority's decision as judicial overreach, while Justice Rebecca Bradley accused the ruling of undermining the sovereignty of the people. She also condemned Chief Justice Jill Karofsky's concurring opinion for rewriting history and using inclusive language such as "pregnant people."
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the 1849 law, suggesting that it could coexist with more recent statutes. The ruling maintains Wisconsin's existing 20-week abortion limit, implemented by former Republican Governor Scott Walker in 2015. Walker expressed concern that without this law, unborn children in Wisconsin would lack significant legal protections.
Republican legislators have not announced any immediate plans to introduce further abortion restrictions. Senate Majority Leader Devin LeMahieu stated he had not yet reviewed the court's ruling.
The 4-3 decision highlights the deep divisions in Wisconsin's political and judicial landscape, raising questions about the balance of power between the legislature and judiciary. It also signals that the contention over abortion rights in the state is far from over.
