The Wisconsin Supreme Court has invalidated an 1849 state abortion ban that had been inactive for five decades. The ruling, issued on Wednesday, addresses the legal uncertainty surrounding abortion laws in Wisconsin since the U.S. Supreme Court's decision to overturn Roe v. Wade in June 2022, which ended the constitutional right to abortion nationwide.
This decision highlights the importance of state elections for Supreme Court justices, which have been heavily focused on abortion rights since the fall of Roe. The court ruled 4-3 to strike down the ban, with the justices divided along ideological lines. Newly elected Justice Janet Protasiewicz, who campaigned on her support for abortion rights, was part of the majority.
The 1849 law stipulated that anyone other than the pregnant woman who intentionally ended the life of an unborn child could face six years in prison and a $10,000 fine, with the only exception being a “therapeutic abortion” to save the life of the pregnant woman.
Following the U.S. Supreme Court's decision to return abortion regulation to the states, Governor Tony Evers and Attorney General Josh Kaul, both Democrats, filed a lawsuit to invalidate the 1849 ban. They contended that the law had been effectively repealed by subsequent abortion regulations, including a law prohibiting abortion after 20 weeks and another imposing a 24-hour waiting period.
Despite this, some prosecutors indicated they would enforce the 1849 law, leading to a cessation of abortion services in the state for nearly 18 months. Abortion services resumed in December 2023 after a Dane County judge ruled the ban invalid, coinciding with the election of Justice Protasiewicz, who had publicly supported abortion rights.
Sheboygan County District Attorney Joel Urmanski, a Republican, had appealed the Dane County ruling, arguing that subsequent abortion regulations were intended to preserve the 1849 law. However, Justice Protasiewicz's election created a liberal majority on the court, making the overturning of the ban more likely.
In the majority opinion for the case known as Kaul v. Urmanski, Justice Rebecca Dallet reiterated the arguments made by the governor and attorney general, stating that comprehensive legislation enacted over the past 50 years effectively replaced the 19th-century ban on abortion.
Justice Dallet noted that the court had historically set a high standard for “implied repeal,” but found that the legislature had met this standard by thoroughly revising state abortion laws. She detailed the extensive regulations that specify who may perform abortions, where they can be performed, and under what circumstances.
In response to the ruling, Governor Evers stated that it was a victory for women, families, and healthcare professionals, pledging to continue fighting for reproductive freedoms in Wisconsin. The state’s Republican Party criticized the decision, asserting that such issues should be resolved through the legislature and not by the court.
During a November hearing, justices from the court's liberal majority engaged in a contentious exchange with Urmanski's lawyer, who acknowledged the implications of the ban on young victims of sexual assault.
In a separate ruling, the court dismissed a lawsuit from Planned Parenthood of Wisconsin that sought to establish a constitutional right to abortion and protections for medical professionals providing such services. The court indicated that its ruling in Kaul v. Urmanski effectively resolved the matter.
Michelle Velasquez, a lawyer with Planned Parenthood of Wisconsin, welcomed the court's decision regarding the 1849 ban but emphasized the ongoing need to protect and expand reproductive freedoms in the state.
Similar pre-Roe abortion bans exist in other states and have become significant issues in electoral politics. Concerns over such laws have led to successful ballot measures in states like Michigan and Arizona, establishing constitutional rights to abortion.