Wisconsin high court to hear arguments on whether an 1849 abortion ban remains valid

MADISON, Wis. — The Wisconsin Supreme Court will hear oral arguments Monday on whether a law that legislators adopted more than a decade before the Civil War bans abortion and can still be enforced.

Abortion rights advocates stand an excellent chance of prevailing, given that liberal justices control the court and one of them remarked on the campaign trail that she supports abortion rights. Monday’s arguments are little more than a formality ahead of a ruling, which is expected to take weeks.

Wisconsin lawmakers passed the state’s first prohibition on abortion in 1849. That law stated that anyone who killed a fetus unless the act was to save the mother’s life was guilty of manslaughter. Legislators passed statutes about a decade later that prohibited a woman from attempting to obtain her own miscarriage. In the 1950s, lawmakers revised the law’s language to make killing an unborn child or killing the mother with the intent of destroying her unborn child a felony. The revisions allowed a doctor in consultation with two other physicians to perform an abortion to save the mother’s life.

The U.S. Supreme Court’s landmark 1973 Roe v. Wade ruling legalizing abortion nationwide nullified the Wisconsin ban, but legislators never repealed it. When the Supreme Court overturned Roe two years ago, conservatives argued that the Wisconsin ban was enforceable again.

Democratic Attorney General Josh Kaul filed a lawsuit challenging the law in 2022. He argued that a 1985 Wisconsin law that allows abortions before a fetus can survive outside the womb supersedes the ban. Some babies can survive with medical help after 21 weeks of gestation.

Sheboygan County District Attorney Joel Urmanski, a Republican, argues the 1849 ban should be enforceable. He contends that it was never repealed and that it can co-exist with the 1985 law because that law didn’t legalize abortion at any point. Other modern-day abortion restrictions also don’t legalize the practice, he argues.

Dane County Circuit Judge Diane Schlipper ruled last year that the old ban outlaws feticide — which she defined as the killing of a fetus without the mother’s consent — but not consensual abortions. The ruling emboldened Planned Parenthood to resume offering abortions in Wisconsin after halting procedures after Roe was overturned.

Urmanski asked the state Supreme Court in February to overturn Schlipper’s ruling without waiting for lower appellate courts to rule first. The court agreed to take the case in July.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on whether a constitutional right to abortion exists in the state. The court agreed in July to take that case as well. The justices have yet to schedule oral arguments.

Persuading the court’s liberal majority to uphold the ban appears next to impossible. Liberal Justice Janet Protasiewicz stated openly during her campaign that she supports abortion rights, a major departure for a judicial candidate. Usually, such candidates refrain from speaking about their personal views to avoid the appearance of bias.

The court’s three conservative justices have accused the liberals of playing politics with abortion.