Attorney General Josh Kaul attends a rally with Wisconsin Governor Tony Evers before the mid-term elections in Milwaukee, Wisconsin, U.S. October 29, 2022. REUTERS/Daniel Steinle
The Wisconsin Supreme Court has struck down the state’s 176-year-old abortion ban, a decision that underscores the evolving legal landscape surrounding reproductive rights in the United States. On Wednesday, the court’s liberal majority ruled 4-3 that the archaic statute was superseded by more recent laws regulating abortion, including those criminalizing the procedure only after a fetus can survive outside the womb.
The decision was anticipated, given the liberal control of the court. Notably, one justice had openly campaigned on a platform supporting abortion rights, and the justices had previously criticized the ban during oral arguments last November. The 1849 statute, interpreted as a near-total ban, criminalized the destruction of “an unborn child” by anyone other than the mother or a doctor in a medical emergency.
Historical Context and Legal Battles
The 1849 abortion ban remained in effect until the landmark 1973 U.S. Supreme Court decision in Roe v. Wade, which legalized abortion nationwide. Despite this, Wisconsin legislators never formally repealed the ban. Following the U.S. Supreme Court’s 2022 decision to overturn Roe, conservative factions argued that the 1849 ban was reactivated.
In response, Wisconsin Attorney General Josh Kaul filed a lawsuit, asserting that subsequent abortion restrictions enacted during Roe’s nearly 50-year tenure effectively nullified the ban. Kaul pointed to a 1985 law permitting abortions until viability, generally around 21 weeks of gestation, as evidence of more nuanced legislation.
Modern Legislative Framework
Under Roe, Wisconsin lawmakers introduced additional regulations, including mandatory ultrasounds, a 24-hour waiting period, and written consent for abortions. These laws also required doctors to provide abortion-inducing drugs in person. The Supreme Court’s majority opinion stated that such comprehensive legislation effectively replaced the 19th-century ban.
“The legislature impliedly repealed the ban by enacting comprehensive legislation about virtually every aspect of abortion,” wrote Justice Rebeca Dallet.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the 1849 ban, arguing it could coexist with newer restrictions, similar to how different penalties for the same crime coexist. However, the court’s decision provides clarity and assurance to abortion providers and patients in Wisconsin.
Reactions and Political Implications
The ruling has sparked a range of reactions from political and advocacy groups. Justice Annette Ziegler, in her dissent, criticized the decision as a “jaw-dropping exercise of judicial will,” accusing the liberal justices of succumbing to personal preferences and political pressures.
“Our court has no business usurping the role of the legislature,” Ziegler wrote, arguing that the decision was based on invented legal theories.
Heather Weininger, Executive Director of Wisconsin Right to Life, expressed disappointment, stating that the ruling failed to identify any statute explicitly repealing the 1849 ban. “To assert that a repeal is implied is to legislate from the bench,” she said.
Meanwhile, Planned Parenthood of Wisconsin had previously sought a Supreme Court decision on the constitutionality of the 1849 ban, a case the court dismissed without explanation, drawing further criticism from conservative justices.
Future Outlook and Voter Sentiment
The decision reflects broader shifts in public opinion within Wisconsin. According to AP VoteCast, a significant majority of voters in the 2024 election—62%—supported legal abortion in all or most cases. Only a small fraction, 5%, believed abortion should be illegal in all cases.
The court’s ruling is likely to influence future legislative and judicial actions on reproductive rights in Wisconsin. With Democratic-backed Susan Crawford set to join the court, the liberal majority is poised to maintain its influence until at least 2028, ensuring continued support for abortion rights.
This development highlights the ongoing national debate over reproductive rights, as states navigate the complex interplay between historical statutes and modern legal frameworks. As Wisconsin moves forward, the decision sets a precedent for how other states might address similar legal challenges.
