The Wisconsin Supreme Court ruled on Wednesday that the state’s outdated 1849 abortion ban is no longer valid, delivering a significant victory for abortion rights advocates. The court, with a 4-3 liberal majority, determined that the nearly two-century-old law had been effectively superseded by more modern legislation governing abortion.
The historical ban, enacted 176 years ago, prohibited anyone besides a mother or a doctor in medical emergencies from ending a pregnancy and classified such actions as felonies. This law was rendered unenforceable in 1973 following the U.S. Supreme Court’s decision in Roe v. Wade, which legalized abortion nationwide. However, with the Supreme Court’s reversal of Roe in 2022, conservative lawmakers argued that the original 1849 statute was reactivated as a result.
Wisconsin Attorney General Josh Kaul, a Democrat, initiated a lawsuit asserting that newer regulations imposed on abortion during the nearly five decades of Roe’s enforcement supplanted the 1849 ban. His argument highlighted a 1985 law that permits abortions up until the point of fetal viability, which typically occurs around 21 weeks of gestation.
In her majority opinion, Justice Rebeca Dallet stated, “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.” This ruling provides clarity for both abortion providers and patients in Wisconsin.
In the court, Sheboygan County District Attorney Joel Urmanski, a Republican, sought to uphold the 1849 statute, claiming it could exist alongside newer regulations. However, a ruling made by Dane County Circuit Judge Diane Schlipper earlier in 2023 clarified that the historical ban specifically outlaws feticide but not lawful, consensual abortions.
Despite previous abortion access across the state since the lower court’s ruling, the Supreme Court’s decision now offers more definitive protection for abortion rights in Wisconsin. Urmanski requested the state Supreme Court to overturn the earlier ruling without waiting for an appellate court’s verdict.
Leading up to Wednesday’s decision, the liberal justices hinted that a repeal of the ban was on the horizon. During her campaign, Justice Janet Protasiewicz made her support for abortion rights explicit. During oral arguments, Justice Dallet referred to the ban’s origins, stating it was created by “white men who held all the power in the 19th century.” Additionally, Justice Jill Karofsky expressed her view that the ban functioned as a “death warrant” for women and children needing medical care.
Voter sentiment in Wisconsin indicates significant support for abortion rights, with 62% affirming that abortion should remain legal in most or all cases, according to AP VoteCast. Only 5% of those surveyed believe it should be illegal in all circumstances, highlighting the gap between public opinion and the historical legislature.
In a dissenting opinion, Justice Annette Ziegler criticized the ruling as a “jaw-dropping exercise of judicial will,” arguing that the majority justices yielded to political pressures and overstepped their judicial authority. “To put it bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly to impose the personal preferences of four justices,” Ziegler stated.
After the ruling, Kaul expressed that it was a “major victory for reproductive rights,” affirming the court’s stance on the importance of safeguarding abortion access. Conversely, Heather Weininger, executive director of Wisconsin Right to Life, expressed her disappointment, arguing that the majority failed to demonstrate that any law explicitly repealed the 1849 ban. She condemned the ruling as an example of “legislating from the bench.”
Earlier in 2024, Planned Parenthood of Wisconsin sought a Supreme Court decision regarding the constitutionality of the ban, but the court dismissed that case without comment, causing disappointment for some advocates. Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, mentioned that although the ruling guarantees stability for abortion access, the dismissal of the constitutional challenge might lead the organization to pursue further legal options against existing restrictions.
Kaul indicated that he does not intend to contest these remaining restrictions and believes that the legislature should revisit the state’s abortion policies altogether.
Recent electoral developments suggest an ongoing focus on abortion in Wisconsin’s Supreme Court landscape. Democratic-backed Susan Crawford won a court seat in April, ensuring the liberal majority will continue at least until 2028. While Crawford has not yet taken office, her victory maintains a 4-3 liberal advantage.
As the state gears up for another Supreme Court election next spring, abortion rights are set to remain at the forefront of campaign discussions. Chris Taylor, a state appellate judge and former Planned Parenthood policy director, is challenging conservative Justice Rebecca Bradley, and her campaign has already framed the court’s ruling as a “huge victory.”
In her statement, Taylor criticized Bradley’s dissent, describing it as “an unhinged political rant” and emphasized the correctness of the majority’s decision. Bradley, on the other hand, has expressed strong opposition towards what she believes are the liberal justices’ attempts to usurp legislative power, calling their actions an “affront to democracy.”
The ruling, reflecting contemporary views on abortion rights compared to those absorbed by historical laws, marks a significant moment in Wisconsin’s ongoing debate over reproductive rights.
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