MILWAUKEE – The Wisconsin Supreme Court’s liberal majority struck down the state’s 1849 abortion ban in a decision released Wednesday.
Abortion law in Wisconsin
The backstory:
The recent debate started when the U.S. Supreme Court struck down Roe v. Wade in 2022. People on both sides said Wisconsin’s 1849 abortion law sprung back into effect.
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For about 15 months, Wisconsin abortion providers stopped.
“One of the things that’s great about today’s decision is we now have clarity from the highest state court, the ultimate decision maker, on this issue about what Wisconsin law provides,” said Attorney General Josh Kaul.
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.
What changes?
Why you should care:
The 1849 law prohibited abortions except to save the mother’s life.
In practice, the court’s ruling doesn’t actually change what is already allowed in the state because a Dane County judge ruled the law from 1849 did not ban abortion.
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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.
“I recall caring for a patient with a life-threatening complication who needed abortion care in this time. I looked around the operating room at the nurses, the anesthesia team, and feared for the patient’s safety but also my own,” said Dr. Amy Domeyer, an OB-GYN. “Was this life-threatening condition life-threatening enough?”
Opposition to decision
The other side:
While advocates for abortion rights declared the ruling a victory, those opposed to abortion said they’re concerned about protecting the unborn.
“These are humans, and their lives are so important and so precious. And they should be valued,” said Isabel Patrick, who opposes abortion.
“Such an egregious decision to rule in this way, to legislate from the bench,” said Dan Miller with Pro-Life Wisconsin.
Planned Parenthood’s case
Dig deeper:
The Wisconsin Supreme Court also dismissed Planned Parenthood’s case on Wednesday. The organization wanted the court to rule that the Wisconsin Constitution gave a right to abortion and said it would look at other state laws it could challenge.
Question: What are some of the state laws that could be fought in court?
Answer: Right now, the state bans abortions at 20 weeks of pregnancy with an exception to save the life of the mother.
State law also requires a 24-hour waiting period and an ultrasound beforehand, while abortion-inducing drugs must be given in person.
Reaction to ruling
What they’re saying:
A number of lawmakers, government officials and organizations have released statements on the court’s decision. They are listed below.
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.”
Representative Barbara Dittrich (R-Oconomowoc)
“To no one’s surprise, the extreme leftist majority on the Wisconsin Supreme Court overturned standing law dating back to 1849. Sadly, most Wisconsinites want at least some limitations on abortions, and I have tried to meet the majority of people where they are at.
“Unfortunately, this ruling leaves Wisconsin with open season on unborn children.”
Attorney General Josh Kaul
“This marks a major victory for reproductive freedom following the uncertainty and harm to women’s health that have resulted from the U.S. Supreme Court’s overturning of Roe v. Wade,” said AG Kaul. “At a time when rights are endangered, this ruling is a powerful reminder of the importance of advocating for our freedoms.”
Pro-Life Wisconsin Legislative Director Matt Sande
“Pro-Life Wisconsin wholly opposes this egregious ruling overturning Wisconsin’s abortion ban from the moment of conception. The Wisconsin Supreme Court has consistently stated that acts of the legislature are presumed to be constitutional and are to be given due deference.
“In Hui v. Castenada (2010), the Court found disfavor with repeal by implication stating, “As we have emphasized, repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” It was certainly never the intent of the legislative authors of modern abortion regulations post-Roe and Casey to repeal s.940.04 or they would have expressly done so. They did not. They were simply attempting to mitigate the ravages of abortion under the onerous dictates of the Roe/Casey legal regime.
“In State of Wisconsin v. Glenndale Black (1994), the Wisconsin Supreme Court was unpersuaded that the legislature intended to repeal s.940.04 when it enacted the Roe-conforming s.940.15. It said, “Implied repeal of statutes by later enactments is not favored in statutory construction.”
“And in State v. Zawistowski (1980), the Court specifically held, “All statutes passed and retained by the legislature should be held valid unless the earlier statute is completely repugnant to the later enactment.” Section 940.04 of the Wisconsin Statutes is clearly not inconsistent with, offensive or repugnant to modern-day abortion laws.
“In sum, respect for Wisconsin Supreme Court case law history, legislative intent, logic, and justice are not the aim of this radicalized Court; unfettered abortion is.
“Pro-Life Wisconsin will continue the fight to outlaw abortion without exception, pass a personhood amendment enshrining the right to life in the Wisconsin Constitution, and enact pro-life, pro-family legislation that helps build a culture of life in our great state. We will also continue to change hearts and minds through educational outreach, an active social media presence, billboard campaigns, support of pregnancy resource centers, and sidewalk counseling in front of abortion centers.”
Wisconsin Senate Majority Leader Devin LeMhaieu (R-Oostburg)
“Today is a sad day for the state of Wisconsin.
“The court’s role is to analyze the law free from political influence. The majority ignored that constitutional responsibility today and instead took this opportunity to deliver on their political campaign promises.
“The sanctity of life was trampled on today by the liberal majority of the Supreme Court.
“I will never stop fighting for the lives of the pre-born.”
Milwaukee County Executive David Crowley
“Today is a historic day for health freedom and reproductive justice in Wisconsin. With today’s Wisconsin Supreme Court ruling, we affirm Wisconsinites’ right to access abortion care and restore a fundamental freedom: the freedom to make deeply personal healthcare decisions without government interference. This decision makes clear that the archaic 1849 law, which was written before women had the right to vote, cannot be used to strip away our personal freedoms. Women and families no longer have to live in fear of exercising their basic right to body autonomy, and medical professionals are no longer forced to choose between saving someone’s life and risking prosecution. Because no one should be criminalized for seeking or providing abortion care, especially in cases of rape, incest, or medical emergencies.
“Milwaukee County’s vision to advance racial and health equity can only be achieved when people have access to the health care they need, when they need it. I believe that access to safe, legal abortion is essential healthcare, and at long last, I am proud that our state is fully committed to protecting this right.
“This decision would not have been possible without the relentless pursuit of reproductive justice and strong leadership of Governor Tony Evers and Attorney General Josh Kaul. While today’s ruling is victory for Wisconsin, the fight for reproductive justice across our country is far from over. Today, we celebrate this win, and tomorrow, we continue our work to defend every woman’s right to make their own health care decisions.”
Milwaukee County Board Chair Marcelia Nicholson
“Today’s decision clarifies the legal landscape of reproductive healthcare in Wisconsin, ensuring that we are governed by a modern statutory framework, not an archaic 175-year-old law,” said County Board Chairwoman Marcelia Nicholson. “This ruling restores a sense of justice for the people of Wisconsin, especially those in marginalized communities who already face systemic barriers in healthcare access. While we celebrate today’s win, our work towards true reproductive justice is far from over. We will continue to fight on every front for equitable reproductive healthcare access for all in Milwaukee County, Wisconsin, and the nation.
“For more than a century and a half, this law sat on the books as a threat to our bodily autonomy. After Roe v. Wade was overturned in 2022, it became a cruel and dangerous reality, robbing people of their dignity and access to essential healthcare as a shameful attack on human rights.
“Let today be a turning point in our mission to propel health and equity. Let it mark the moment Wisconsin chose care over control, freedom over fear. As Wisconsinites, we go forward.”
The Source: FOX6 News reviewed the Wisconsin Supreme Court decision and referenced prior coverage of Wisconsin abortion law for this report. Some details are from The Associated Press’ Todd Richmond.
