Wisconsin Supreme Court Strikes Down 1849 Abortion Ban
Pre-Civil War law was invalidated by later laws, justices find in 4-3 ruling.
Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.
Wisconsin’s 19th-century abortion ban is no longer in effect, the state Supreme Court ruled Wednesday.
The 4-3 high court ruling cements the effects of a lower court ruling, which previously invalidated a ban on most abortions in Wisconsin.
As a result of the lower court ruling and Wednesday’s Wisconsin Supreme Court decision, elective abortions remain legal in Wisconsin up to 20 weeks of pregnancy.
Wednesday’s decision comes nearly eight months after the high court heard oral arguments in the case late last fall.
The ruling results from a 2022 lawsuit, which was brought by Wisconsin’s Democratic Attorney General Josh Kaul in the days after the U.S. Supreme Court overturned a national, Constitutional right to abortion.
The law that was in question first took effect before the Civil War. It said that “any person, other than the mother, who intentionally destroys the life of an unborn child” is guilty of a felony and includes an exception only for abortions done to save a pregnant woman’s life.
But in its new ruling, the court’s liberal majority concluded the 19th century state law cannot be enforced. That’s because the law has been contradicted by more-recent Wisconsin laws that regulate abortion, justices determined.
“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,” a majority opinion written by Justice Rebecca Dallet said. As a result, the law “does not ban abortion in the state of Wisconsin.”
Justices Ann Walsh Bradley and Janet Protasiewicz signed on to the majority opinion and Justice Jill Karofsky filed a concurring opinion. The court’s three conservative justices dissented.
Providers halted elective abortions in Wisconsin for over a year
After the U.S. Supreme Court overturned Roe v. Wade, the federal case used as the basis for a right to abortion, in June 2022, providers across Wisconsin stopped providing elective abortions because of concerns about being prosecuted under the 19th-century law.
That period of legal limbo lasted for more than a year until a Dane County County judge handed down a decision favorable to abortion-rights supporters.
That ruling in Kaul’s lawsuit concluded that the 19th-century law does not ban abortions if they’re done with a pregnant person’s consent.
Instead, Circuit Court Judge Diane Schlipper concluded that the law bans feticide, which is assaulting a pregnant woman and destroying her pregnancy.
In the wake of that Dane County decision, Planned Parenthood of Wisconsin once again began offering abortions in the state. The organization resumed abortions at its clinics in Madison and Milwaukee in September 2023, before restarting abortion services in Sheboygan in December of that year.
Since then, two other clinics known as Affiliated Medical Services and Care for All have started providing abortions in Milwaukee.
Although advocates say abortion is currently legal in Wisconsin, they point out that other statewide restrictions on abortion remain in effect. That includes a mandatory ultrasound law and a law requiring someone to wait 24 hours after an appointment with a physician before getting an abortion.
In their ruling, the high court’s liberal majority did not echo Schlipper’s interpretation of the law as one that bans feticide but not “consensual” abortions.
Nonetheless, justices concluded that the more-than-century-old legislation had been superseded by Wisconsin abortion laws passed later on.
Abortion was centerpiece of race that flipped Wisconsin’s Supreme Court
This week’s decision was hotly anticipated, after abortion rights became a centerpiece of a costly Wisconsin Supreme Court races in 2023 and again in 2025.
Some conservatives have accused the court’s liberal majority of delaying a decision in the case in order to keep the 19th century state law alive as an election issue.
After agreeing to take up the case, the high court heard arguments on Nov. 11 from the attorney general’s office and from attorneys for Joel Urmanski, a Republican district attorney in Sheboygan County.
Urmanski has said previously that, unless a court rules otherwise, he would enforce the 19th century law banning most abortions.
Justices also weighed testimony from a group of Wisconsin physicians who intervened in the case, arguing that their due-process rights would be harmed if an abortion ban was enforced.
Although Wisconsin Supreme Court seats are officially nonpartisan, justices seen as liberal have had a 4-3 majority since August of 2023.
That’s when Protasiewicz, who had the backing of Demcorats, beat Dan Kelly by a decisive margin of 11 percentage points after emphasizing her support for abortion rights while campaigning.
Before Protasiewicz’s win, justices seen as conservative had held a majority on the Wisconsin Supreme Court for a decade and a half.
The current liberal majority will continue into the court’s next term after Dane Count Circuit Court Judge Susan Crawford won an election in April against former Republican Wisconsin Attorney General Brad Schimel.
Crawford takes office on Aug. 1 to replace retiring liberal Justice Ann Walsh Bradley.
In February 2024, Planned Parenthood of Wisconsin filed a separate abortion-related petition with the state’s Supreme Court. That lawsuit likewise argues that an abortion ban should not be enforced in Wisconsin, but it attempts to make that argument on broader grounds compared to the attorney general’s lawsuit.
Planned Parenthood’s lawsuit contends that an abortion ban violates rights in Wisconsin’s Constitution, including the right to “bodily autonomy.” Last year, Wisconsin justices agreed to hear Planned Parenthood’s petition, but the court has not set a schedule for briefings or oral arguments in that case.
Wisconsin Supreme Court strikes down 19th-century abortion ban was originally published by Wisconsin Public Radio.
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