Wisconsin Supreme Court’s liberal majority strikes down 176-year-old abortion ban

Wisconsin Attorney General Josh Kaul delivers remarks following a hearing before Dane County Wisconsin Judge Diane Schlipper, which challenges a feticide law in Madison, Wis., May 4, 2023. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. — The Wisconsin Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.

The ruling came as no surprise given that liberal justices control the court. One of them went so far as to promise to uphold abortion rights during her campaign two years ago, and they blasted the ban during oral arguments in November.

Ban outlawed destroying `an unborn child’

The statute Wisconsin legislators adopted in 1849, widely interpreted as a near-total ban on abortions, made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy “an unborn child.”

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 Legislators never officially repealed it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.

Ruling: Post-Roe laws effectively replaced ban

Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that abortion restrictions enacted by Republican legislators during the nearly half-century that Roe was in effect trumped the ban. Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.

Lawmakers also enacted abortion restrictions under Roe requiring women to undergo ultrasounds, wait 24 hours before having the procedure and provide written consent, and receive abortion-inducing drugs only from doctors during an in-person visit.

“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebeca Dallet wrote for the majority.

Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that it can coexist with the newer abortion restrictions.

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 had asked the state Supreme Court to overturn Schlipper’s ruling without waiting for a decision from a lower appellate court.

Liberal justices signaled repeal was imminent

The liberal justices all but telegraphed how they would rule. Justice Janet Protasiewicz stated on the campaign trail that she supports abortion rights. During oral arguments, Dallet declared that the ban was authored by white men who held all the power in the 19th century. Justice Jill Karofsky likened the ban to a “death warrant” for women and children who need medical care.

A solid majority of Wisconsin voters in the 2024 election, 62 per cent, said abortion should be legal in all or most cases, according to AP VoteCast. About one-third said abortion should be illegal in most cases and only 5 per cent said it should be illegal in all cases.

In a dissent, Justice Annette Ziegler called the ruling “a jaw-dropping exercise of judicial will.” She said the liberal justices caved in to their Democratic constituencies.

“Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law,” Ziegler said.

Urmanski’s attorney, Andrew Phillips, didn’t respond to an email. Kaul told reporters during a news conference that the ruling is a “major victory” for reproductive rights.

Heather Weininger, executive director of Wisconsin Right to Life, called the ruling “deeply disappointing.” She said that the liberals failed to point to any statute that explicitly repealed the 1849 ban.

“To assert that a repeal is implied is to legislate from the bench,” she said.

Court dismisses constitutional challenge

Planned Parenthood of Wisconsin asked the Supreme Court in February 2024 to decide whether the ban was constitutional. The court dismissed that case with no explanation Wednesday.

Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said Wednesday’s ruling creates stability for abortion providers and patients, but she was disappointed the justices dismissed the constitutional challenge. She hinted that the organization might look next to challenge the state’s remaining abortion restrictions.

Kaul said he has no plans to challenge the remaining restrictions, saying the Legislature should instead revisit abortion policy.

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.

Abortion fight figures to play in 2026 court race

Abortion figures to be a key issue again next spring in another race for a state Supreme Court seat. Chris Taylor, a state appellate judge who served as Planned Parenthood of Wisconsin’s policy director before a stint as a Democratic legislator, is challenging conservative Justice Rebecca Bradley.

Taylor’s campaign sent out an email Wednesday calling the ruling a “huge victory” and asking for donations. She issued a statement calling the decision the correct one and blasting Bradley’s dissent as “an unhinged political rant.”

Bradley wrote that the four liberal justices fancy themselves “super legislators” and committed “an affront to democracy.”

Todd Richmond, The Associated Press