Wisconsin Supreme Court Issues Landmark Abortion Ruling

The liberal majority on the Wisconsin Supreme Court has struck down an abortion ban in the state that dates back 176 years, ruling 4-3 that it was superseded by a newer state law that criminalizes abortions only after a fetus can survive outside the womb.

State lawmakers adopted the ban in 1849, making it a felony when anyone other than the mother "intentionally destroys the life of an unborn child."

"We conclude that comprehensive legislation enacted over the last 50 years 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," the ruling states.

Justices said they "hold that the legislature impliedly repealed" the old law on abortion, known as s.940.04, so it "does not ban abortion in the State of Wisconsin."

In his dissenting opinion, Justice Brian Hagedorn said the decision "does not derive from a neutral application of the law; it does not even pass the smell test."

"Sure, the majority opinion is laden with legal jargon a reader might think reflects a reasoned judicial opinion. Don't be fooled," Hagedorn wrote.

"This is pure policymaking, driven by antagonism toward a law the majority does not like. The end result is that the policies enacted by the people's representatives are gone—scratched out with a giant judicial eraser."

Wisconsin's 1849 Abortion Ban Unravels

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Legislators never officially repealed the ban, however, and conservatives argued that the U.S. Supreme Court's 2022 decision to overturn Roe reactivated it.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 the ban was trumped by abortion restrictions that 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 ban in court, arguing that the 1849 law could co-exist with the newer abortion restrictions, just as different penalties for the same crime co-exist.

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 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 because of the liberal majority.

Reactions to Wisconsin Supreme Court Ruling

Wisconsin Democratic Governor Tony Evers called the ruling "a win for women and families, a win for health care professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over."

Michelle Velasquez, chief strategy officer at Planned Parenthood of Wisconsin, an abortion rights group, hailed the ruling in a statement as "an important step forward in ensuring access to abortion in Wisconsin."

"While we celebrate this ruling, there is more to be done," Velasquez said. "We will continue working to protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive health care in our state can get the nonjudgmental and compassionate care they deserve.

"The Court has yet to decide on our original action, which they accepted last summer, about whether the Wisconsin Constitution protects the right to bodily autonomy, including the explicit right to abortion. We look forward to moving that important case forward."

But Dan Miller, state director of Pro-Life Wisconsin, an anti-abortion group, said his organization "wholly opposes this egregious ruling overturning Wisconsin's abortion ban from the moment of conception."

"To rule that all of s.940.04 has nothing to do with a consensual, medically induced abortion defies the plain wording and meaning of the statute. It is an extraordinary leap in logic," Miller said.

"Anyone who ruled to overturn s.940.04 should be disbarred. Wisconsinites should be horrified that the highest court in our state is willing to trample the rights of our brothers and sisters in Christ who have not been born yet.

"If they can make killing babies in the womb legal, who will they target next?"

Miller added: "We thank Justices Hagedorn, Bradley and Ziegler for standing up for hope. A hope that all human beings, including those currently in the womb, will enjoy the same rights to life, liberty and the pursuit of happiness that any other citizen of these United State of America now enjoys under the 14th Amendment."

This article includes reporting by The Associated Press.