The Wisconsin Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on July 2, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.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 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 Legislators never officially repealed it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.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 Republican 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.
Lawmakers also enacted abortion restrictions under Roe requiring women undergo ultrasounds, wait 24 hours before having the procedure and provide written consent, and receive abortion-inducing drugs only from doctors during an in-person visit.
“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 for the majority.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that it can coexist with the newer abortion restrictions.
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 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. 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 Democratic constituencies.
“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 respond to an email. Kaul told reporters during a news conference that the ruling is a “major victory” for reproductive rights.
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,” said Governor Tony Evers in a statement. “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.
Governor Evers called the decision 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 he cautions that the work was not over.
Heather Weininger, executive director of Wisconsin Right to Life, called the ruling “deeply disappointing.” She said 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.
“With the ruling, we affirm Wisconsinites’ right to access abortion care and restore a fundamental freedom: the freedom to make deeply personal healthcare decisions without government interference,” said Milwaukee County Executive David Crowley in a statement. “This decision makes clear that the archaic 1849 law, which was written before women had the right to vote, cannot be used to strip away our personal freedoms. Women and families no longer have to live in fear of exercising their basic right to body autonomy, and medical professionals are no longer forced to choose between saving someone’s life and risking prosecution. Because no one should be criminalized for seeking or providing abortion care, especially in cases of rape, incest, or medical emergencies.”
Planned Parenthood of Wisconsin asked the Supreme Court in February 2024 to decide whether the ban was constitutional. The court dismissed that case with no explanation on July 2.
Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said the ruling creates stability for abortion providers and patients but she was disappointed that the justices dismissed the constitutional challenge. She hinted that the organization might look next to challenge the state’s remaining abortion restrictions.
Kaul said he has no plans to challenge the remaining restrictions, saying the Legislature should instead revisit abortion policy.
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 the July 2 ruling.
