(Washington Examiner) The liberal majority on Wisconsin’s Supreme Court struck down the state’s 176-year-old abortion ban on Wednesday, backing a lower court’s decision to overturn the 19th-century law.
The 4-3 ruling ends three years of legal fighting over the issue, following the landmark 2022 ruling by the U.S. Supreme Court that overturned Roe v. Wade and kicked the decision over abortion back to state courts.
Justice Rebecca Dallet, writing for Wisconsin’s high court liberal majority, said lawmakers effectively repealed the state’s 1849 abortion ban when they passed legislation regulating the procedure, signaling a shift in legal interpretation of the state’s abortion laws.
The 1849 state law stated that anyone other than the pregnant woman “who intentionally destroys the life of an unborn child” could face six years in jail and a $10,000 fine. The only exception was for abortions to save the life of the mother.
“This case is about giving effect to 50 years’ worth of laws passed by the legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions,” Dallet wrote. “The legislature, as the people’s representatives, remains free to change the laws with respect to abortion in the future.”
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Following the reversal of Roe, Wisconsin Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, sued to invalidate the 1849 ban. They argued that it had been effectively repealed over the years by other abortion regulations. Specifically, Kaul pointed to a 1985 statute that allowed abortion until fetal viability, typically around 21 weeks, when some babies can survive with medical intervention.
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Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court. He claimed it could coexist with newer abortion restrictions.
Dane County Circuit Judge Diane Schlipper ruled in 2023 that the 1849 ban outlawed feticide, the killing of a fetus without the mother’s consent, but not consensual abortions.
Urmanski asked the state Supreme Court to overturn Schlipper’s ruling without waiting for a decision from a lower appellate court.
Abortion clinics in Wisconsin resumed the procedure after Schlipper’s ruling, as well as the election of Supreme Court Justice Janet Protasiewicz, who campaigned on abortion rights.
Republicans lost big in that race, betting badly that backing the ban in a general election with huge policy stakes would net them a win.
Instead, Protasiewicz, a liberal judge with a history of being soft on crime, bulldozed her way into a technically nonpartisan seat on the state’s highest court by openly vowing to protect a woman’s right to choose.
In February, Wisconsin voters put another liberal on the court: Wisconsin Supreme Court Justice Susan Crawford.
In 2009, Crawford had been on then-Gov. Jim Doyle’s (D-WI) staff and filed numerous lawsuits challenging Republican-backed laws. In two of those cases, she represented Planned Parenthood and challenged the limitations to abortion.
She also spoke against the Supreme Court ruling overturning Roe numerous times on the campaign trail. Crawford has not been sworn in yet and was not part of Wednesday’s ruling.
Editor's note: This article was published by the Washington Examiner and is reprinted with permission.
