The liberal majority of the Wisconsin Supreme Court overturned a 176-year-old abortion ban on Wednesday, determining with a 4-3 vote that a more recent state law takes precedence. This updated law allows for criminal charges to be brought against abortions only when a fetus is viable outside the mother’s 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.”
Originally, the ban was rendered ineffective in 1973 following the U.S. Supreme Court’s landmark decision in Roe v. Wade, which legalized abortion across the country. Although this old ban was never formally repealed, conservative factions argued that it came back into force when the U.S. Supreme Court overturned Roe in 2022.
Wisconsin’s Democratic Attorney General, Josh Kaul, challenged the reactivation of the ban with a lawsuit. He argued that various abortion regulations passed during the time Roe was still active, especially a 1985 law, should supersede the ban. This 1985 law effectively permits abortions up until the point of fetal viability, which can sometimes occur as early as 21 weeks with the aid of medical assistance.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that the 1849 ban could coexist with the newer abortion restrictions, just as different penalties for the same crime coexist.
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. Liberals hold a 4-3 majority on the court and one of them, Janet Protasiewicz, openly stated on the campaign trail that she supports abortion rights.
Democratic-backed Susan Crawford defeated conservative Brad Schimel for an open seat on the court in April, ensuring liberals will maintain their 4-3 edge until at least 2028. Crawford has not been sworn in yet and was not part of Wednesday’s ruling. She’ll play pivotal role, though, in a separate Planned Parenthood of Wisconsin lawsuit challenging the 1849 ban’s constitutionality. The high court decided last year to take that case. It’s still pending.
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