Wisconsin’s supreme court on Wednesday struck down a 176-year-old state law that made it a felony to provide an abortion unless necessary to save the life of the pregnant woman.
The state’s supreme court, whose seven members are popularly elected, has a narrow liberal majority. This decision was made along ideological lines, with the four liberal justices in support of the ruling and the three conservative justices in dissent.
The majority opinion concludes that “comprehensive legislation enacted over the last 50 years” by the Wisconsin legislature “regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion.” Therefore, the court found “that the legislature impliedly repealed” Wisconsin’s near-total ban on abortion, so the pre-Civil War law “therefore does not ban abortion in the State of Wisconsin.”
Conservatives on the court argued in their dissent that the law banning abortion was not nullified by subsequent legislation, but rather the 1973 U.S. Supreme Court decision in Roe v. Wade. After that decision was overturned by Dobbs v. Jackson Women’s Health Organization, they argued that Wisconsin’s original law criminalizing abortion had been reactivated and must now enter into force absent its repeal.
A high-profile judicial election held earlier this year determined the ideological makeup of the Wisconsin supreme court going forward, but not in this decision. In that race, liberal candidate Susan Crawford defeated her conservative opponent, Brad Schimel, by over ten points. The liberal justice whom Crawford is set to replace, Ann Walsh Bradley, joined today’s majority opinion striking down the abortion ban.
Now that the 176-year-old law restricting abortion has been invalidated, abortion will be legal across Wisconsin up to the point of fetal viability, or approximately 20 weeks post-fertilization. Abortions were already being performed in the Wisconsin cities of Madison, Milwaukee and Sheboygan through the first 22 weeks of pregnancy.
The basis of the Wisconsin Supreme Court’s ruling was a lawsuit challenging the near-total abortion ban brought by the state’s Democratic attorney general, Josh Kaul. He cited a 1985 state law that allowed abortions until viability to argue that the law enacted in 1849 had been implicitly repealed.
Sheboygan County’s Republican district attorney, Joel Urmanski, defended the 1849 law before the state supreme court. Urmanski argued that, just as different penalties for the same crime often coexist, the near-total abortion ban could coexist with more recent restrictions.
The case was first heard in 2023 by Dane County Circuit Judge Diane Schlipper. She concluded that the 1849 law banned feticide, or the killing of a fetus without the mother’s consent, but did not extend to consensual abortions. The law’s text criminalized instances when anyone except the mother “intentionally destroys the life of an unborn child.”
Urmanski then asked the Wisconsin Supreme Court to overturn Schlipper’s ruling without first hearing from a lower appellate court. After the justices agreed to hear the case, a ruling against the 176-year-old abortion law was widely expected.