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Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by a newer state law that criminalizes abortions only after a fetus can survive outside the womb.
176-year-old abortion ban
The backstory:
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.”
It 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 Legislators never officially repealed the ban, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.
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Lawsuit filed
What we know:
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that the ban was trumped by abortion restrictions legislators enacted during the nearly half-century that Roe was in effect. Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.
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.
2023 ruling
Dig deeper:
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.
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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.
Crawford defeated Schimel
What’s next:
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.
Reaction to ruling
Gov. Tony Evers
“Three years ago, the U.S. Supreme Court upended five decades of precedent and threw reproductive freedom in Wisconsin—and across our country—into chaos. I promised then to fight like hell to ensure every Wisconsinite has the freedom to consult their family, their faith, and their doctor and make the reproductive healthcare decision that is right for them, and I’ve never stopped. Today, the Wisconsin Supreme Court upheld that basic freedom.
“Thanks to our lawsuit, today’s decision affirms that access to reproductive healthcare will continue to be available, helping ensure Wisconsin women today are not forced to face firsthand what it’s like to live in a state that bans nearly all abortions, even in cases of rape and incest.
“Today is a win for women and families, a win for healthcare professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over. I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin than it is today. That is a promise.”
U.S. Senator Tammy Baldwin
“Three years ago, the activist U.S. Supreme Court stripped millions of Americans of their constitutional right to make their own health care decisions, sending Wisconsin women to live under an 1849 criminal abortion ban. This archaic criminal abortion ban was passed before the Civil War, decades before women had the right to vote, and just a year after Wisconsin became a state,” said Senator Baldwin. “Today’s ruling tells women across Wisconsin that we will not go back. Today’s ruling tells women that our government trusts you to make decisions about your own body and your future. Today’s ruling tells women in our state that they are not second-class citizens. But, this fight is not over. Every woman, in every zip code, in every state deserves the same rights and freedoms. I will not stop fighting until we make that a reality and pass my bill to restore the right to abortion nationwide and allow women to make their own health care decisions without interference from judges or politicians.”
Representative Lisa Subeck (D-Madison)
“Today, Wisconsinites are celebrating a hard-won victory in the ongoing struggle for reproductive freedom. This ruling reaffirms what we have long known: politicians and outdated laws have no place in the deeply personal decisions made between patients and their doctors.”
“For over a year, doctors were threatened and patients left in limbo—all because we lost the fundamental constitutional right to abortion care that had been protected for nearly half a century. That fear, confusion, and harm must never be repeated.”
“Now that the courts have made it clear that Wisconsin does not have a total abortion ban, we must go further. It’s time to protect reproductive rights not just in practice, but in law. We must pass the Abortion Rights Restoration Act to guarantee the right to abortion and eliminate the medically unjustified, politically motivated restrictions that still exist in our state statutes. The people of Wisconsin deserve nothing less than full access to safe and legal reproductive health care without unnecessary barriers and free from judgement.”
Representative Lindee Brill (R-Sheboygan Falls)
“The Liberal majority in the Supreme Court clearly demonstrated today that they’ll find any way to ensure that the genocide of the unborn will continue in Wisconsin, even if it means baselessly overturning laws which have been enshrined in Wisconsin Statute for 175 years. Make no mistake, they knew before any brief was submitted or argument was made what their decision was going to be. Judges should make decisions based on the law and the facts of the case, not their personal political opinions. This was a reprehensible, partisan decision which will lead to the murder of thousands more innocent, unborn children. “I commend District Attorney Joel Urmanski for his bravery in the fight for life in our state. Sheboygan County is honored to have such a warrior for life as a DA. I look forward to fighting alongside him in the future to shift our culture from one which celebrates death by abortion to one in which abortion is unthinkable.”
Fond du Lac County DA Eric Toney
“Today the Wisconsin Supreme struck down CH 940 abortion laws and the Fond du Lac County District Attorney’s Office, as always, will follow the law as ordered by the Court. Wisconsin law allows for an elective abortion up to five months, maintains past protections that do not allow for the prosecution of an expectant mother, and generally do not allow for criminal penalties for medical professionals. Any future changes to this law should be voted on by Wisconsinites and not decided by politicians in Madison.”
Congresswoman Gwen Moore
“I am thrilled by this ruling, which reaffirms that women should be able to control their own bodies. After the devastating Dobbs decision, women in Wisconsin were forced to abide by a 176-year-old law, made before women had the right to vote! It put their health and lives at risk and robbed them of their autonomy. Today’s decision gives women the certainty to seek the abortion care they need.”
“At the same time, women’s health care is still under attack, and is happening right now in this Congress. As this Republican-led Congress works to gut Planned Parenthood and deprive patients of critical preventative health care, I will do what I can to push back and stand up for women.”
ACLU of Wisconsin
“We have been waiting for this moment since the United States Supreme Court overturned our constitutional right and generational expectation to abortion in 2021. Since then – especially before the abortion ban was halted in 2023 – pregnant people in Wisconsin have dealt with the catastrophic consequences of having their bodily autonomy stripped from them – including forced pregnancy, denial of critical medical care for pregnancy-related complications like miscarriage, and having to leave home just to get the treatment they need and deserve. Even though that right was restored by lower courts, the fact that the Wisconsin Supreme Court has now rendered the criminal abortion ban unenforceable, Wisconsinites no longer have to fear the archaic 1849 ban could go back into effect.’
“With the ban struck down, Wisconsin is a more free and more just place to live. But that doesn’t mean it’s time to back down. The political attacks on reproductive justice will not slow down, and we must remain vigilant to make sure everyone who can get pregnant has access to the full range of reproductive healthcare, no matter where in the state they live. Politicians will keep trying to legislate away and restrict our reproductive rights, as well as roll back LGBTQ rights, freedom of expression, and more. While we should celebrate this monumental win, we can’t let up.”
The Source: The Associated Press contributed to this report.
