Wisconsin Supreme Court to Decide on 1849 Abortion Ban

The Wisconsin Supreme Court is set to hear oral arguments on Monday regarding the enforceability of an abortion law enacted over a decade before the Civil War.
The case will determine whether this historic legislation, which effectively bans abortion, remains applicable in modern times.
Abortion-rights advocates are optimistic about their chances in the case while Wisconsin’s Supreme Court currently holds a liberal majority. One of the justices expressed support for abortion rights during her campaign, suggesting a favorable outcome for advocates. While Monday’s arguments are largely procedural, a final ruling is expected within the coming weeks.
Wisconsin’s initial abortion prohibition dates back to 1849, when lawmakers enacted a statute declaring that anyone who intentionally killed a fetus, except to save the mother’s life, was guilty of manslaughter. Around 10 years later, additional legislation made it illegal for a woman to attempt to induce her own miscarriage.
In the 1950s, lawmakers revised the language further, classifying the act of killing an unborn child or causing the mother’s death with intent to harm the unborn child as a felony. These revisions permitted a doctor, with the agreement of two other physicians, to perform an abortion if necessary to save the mother’s life.
The U.S. Supreme Court’s 1973 Roe v. Wade decision, which legalized abortion nationwide, effectively nullified Wisconsin’s abortion ban. However, state legislators never formally repealed the law. When the Supreme Court overturned Roe two years ago, conservatives contended that Wisconsin’s preexisting ban was once again enforceable, reigniting debate over the law’s applicability.
In 2022, Democratic Attorney General Josh Kaul filed a lawsuit challenging the enforceability of Wisconsin’s 1849 abortion ban, asserting that a 1985 state law permitting abortions before a fetus is viable outside the womb supersedes the older statute. Viability can be reached from 21 weeks of gestation.
However, Sheboygan County District Attorney Joel Urmanski, a Republican, maintains that the 1849 ban remains valid because it was never repealed. Urmanski argues that the 1985 law did not explicitly legalize abortion and can coexist with the earlier ban, just as other current abortion restrictions do not legalize the practice.
Last year, Dane County Circuit Judge Diane Schlipper ruled that Wisconsin’s 1849 abortion ban prohibits feticide—defined as killing a fetus without the mother’s consent—but does not apply to consensual abortions. This interpretation encouraged Planned Parenthood to resume abortion services in Wisconsin, which had been paused following the reversal of Roe v. Wade.
In February, District Attorney Joel Urmanski requested that the Wisconsin Supreme Court overturn Schlipper’s decision, bypassing the appellate courts. The Supreme Court agreed to hear the case in July, setting the stage for a definitive ruling on the law’s applicability.
In a separate legal action, Planned Parenthood of Wisconsin filed a lawsuit in February requesting that the state Supreme Court determine if a constitutional right to abortion exists in Wisconsin. The court agreed to take up the case in July, though oral arguments have not yet been scheduled. With a liberal majority on the bench, the prospect of upholding the abortion ban appears slim.
Notably, liberal Justice Janet Protasiewicz openly expressed her support for abortion rights during her campaign—a rare move for a judicial candidate, as most refrain from revealing personal views to maintain impartiality.
The court’s three conservative justices have criticized the liberal justices, accusing them of politicizing the abortion debate.
This article includes reporting from The Associated Press