Wisconsin Supreme Court’s liberal majority strikes down 176-year-old abortion ban

By TODD RICHMOND Associated Press

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Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.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 Legislators never officially repealed it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.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The majority ruling concluded that “the legislature impliedly repealed” the ban “by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully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.An online version of this release is available here.

Ed. note:

In response to the ruling Governor Evers released a statement this morning:

MADISON — In the wake of the U.S. Supreme Court’s decision overturning Roe v. Wade three years ago—a decision that effectively forced Wisconsin to operate under a near-complete abortion ban, even in the cases of rape and incest, for over a year—the Wisconsin Supreme Court today released a decision protecting reproductive freedom and affirming Wisconsinites continue to have access to abortion care in a challenge brought by Gov. Tony Evers and Attorney General Kaul.

The governor initially announced a lawsuit over three years ago after an archaic 1800s-era statute drafted before the Civil War and at a time when Wisconsin women did not have the right to vote caused chaos for women and reproductive healthcare in Wisconsin after the Dobbs decision. 

Gov. Evers, who has consistently fought against Republican attacks on reproductive freedom and healthcare during his time as governor, released the following statement:

“Three years ago, the U.S. Supreme Court upended five decades of precedent and threw reproductive freedom in Wisconsin—and across our country—into chaos. I promised then to fight like hell to ensure every Wisconsinite has the freedom to consult their family, their faith, and their doctor and make the reproductive healthcare decision that is right for them, and I’ve never stopped. Today, the Wisconsin Supreme Court upheld that basic freedom.

“Thanks to our lawsuit, today’s decision affirms that access to reproductive healthcare will continue to be available, helping ensure Wisconsin women today are not forced to face firsthand what it’s like to live in a state that bans nearly all abortions, even in cases of rape and incest.

“Today is a win for women and families, a win for healthcare professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over. I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin than it is today. That is a promise.”

BACKGROUND ON GOV. EVERS’ EFFORTS TO PROTECT AND DEFEND REPRODUCTIVE FREEDOM

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe threw reproductive freedom in Wisconsin into chaos due to confusion caused by an outdated 1849-era statute enacted before the Civil War and at a time when Wisconsin women did not have the right to vote. This upended the constitutional right to abortion that Wisconsinites and Americans relied upon for nearly 50 years. As a result, in the wake of the Dobbs decision, Wisconsin women spent over a year experiencing a functional near-total abortion ban, even in cases of rape or incest. During that time, according to Planned Parenthood of Illinois, Illinois saw a 600 percent increase in Wisconsin patients.

Gov. Evers believes Wisconsinites should be able to make their own reproductive healthcare decisions without interference from politicians who do not know anything about their faith, family, or circumstances, which is why days after the Dobbs decision was released, Gov. Evers and Attorney General Kaul filed a lawsuit to clarify that Wisconsin’s outdated, total criminal ban on abortion is unenforceable. In July 2023, a court ruling in Gov. Evers’ litigation challenging the state’s outdated abortion statute determined the 1849-era law does not prohibit abortions in Wisconsin, enabling healthcare providers to resume providing abortion care in Wisconsin in 2023.

Prior to the Dobbs decision, Gov. Evers joined legislative Democrats in calling on the Legislature to repeal Wisconsin’s 1849-era statute. When a leaked draft of the U.S. Supreme Court opinion in Dobbs revealed that the Supreme Court was poised to overturn Roe, Gov. Evers called the Legislature into a special session to push for legislative action to protect reproductive freedom. However, Republican legislators gaveled in and out of the special session in moments without any discussion or debate.

Additionally, over the course of the past six years, the governor has vetoed several bills passed by the Wisconsin State Legislature, including several that would have restricted access to abortion, inserted politics into the personal and private conversations between patients and their healthcare providers, and made it harder for doctors to provide medically accurate information and treatment. Many of these bills also sought to limit healthcare options for people seeking basic, necessary care, such as pregnancy care, cancer screening and prevention, sexually transmitted disease screening and treatment, and wellness exams.

Attacks on reproductive freedoms have continued across the country in the wake of the U.S. Supreme Court’s decision to overturn Roe. In the interceding years, efforts backed by Republican lawmakers and their allies have been underway nationwide to either obstruct protections for or further restrict access to abortion, birth control, emergency contraception, in vitro fertilization, other fertility treatments, and the safe, effective, and widely used abortion medication, mifepristone.

Gov. Evers will continue to fight these efforts and remains committed to vetoing any bill that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare any less accessible in Wisconsin than it is today.