Wisconsin Supreme Court overturns 1849 abortion ban

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Supreme Court's liberal majority struck down the state's 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalise abortions only after a fetus can survive outside the womb.

The ban state lawmakers adopted in 1849 made it a felony when anyone other than the mother “intentionally destroys the life of an unborn child.” It was in effect until 1973, when the US Supreme Court's landmark Roe v. Wade decision legalising abortion nationwide nullified it. Legislators never officially repealed the ban, however, and conservatives argued that the US Supreme Court's 2022 decision to overturn Roe reactivated it.

Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that the ban was trumped by abortion restrictions legislators enacted during the nearly half-century that Roe was in effect.

Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.

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. It was expected as soon as the justices took the case that they would overturn the ban. Liberals hold a 4-3 majority on the court and one of them, Janet Protasiewicz, openly stated on the campaign trail that she supports abortion rights.

The justices concluded that “the legislature impliedly repealed” the ban “by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully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,” Justice Rebecca Dallet wrote for the majority. “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." In a dissent, Justice Annette Ziegler called the ruling “a jaw-dropping exercise of judicial will." She said the liberal justices based the decision on their personal preference to allow abortions.

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.

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. She'll play pivotal role, though, in a separate Planned Parenthood of Wisconsin lawsuit challenging the 1849 ban's constitutionality. The high court decided last year to take that case. It's still pending.