Wisconsin Supreme Court PC: Fox 11 Online
MADISON, WI (WTAQ-WLUK) — The Wisconsin Supreme Court has answered a three-year question on whether a 176-year-old abortion ban is enforceable.
The liberal majority court struck down the state’s abortion ban Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.
Their decision did not come as a surprise to many.
Wisconsin’s Supreme Court provided clarity on abortion, a little more than three years after the U.S. Supreme Court shifted power to the states on the issue.
“Today’s ruling marks a major victory for reproductive freedom following the uncertainty and harm to women’s health that have resulted from the overturning of Roe v. Wade,” said Wisconsin Attorney General Josh Kaul.
The court sided with Kaul’s lawsuit that argued legislation put in place over the past several decades essentially repealed the state’s 1849 near total ban on abortion.
Some of that legislation includes women needing to have an ultrasound before an abortion, have a counseling appointment, go through a 24-hour wait period, provide written consent and receive abortion-inducing drugs only from doctors during an in-person visit.
Kaul, a Democrat, specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.
“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebeca Dallet wrote for the majority.
“It affirms what doctors needed to know that they can do their jobs and that the people in Wisconsin can make decisions that are right for themselves and their families, and that they have the autonomy and freedom to do that,” said Michelle Velasquez, Planned Parenthood attorney and chief strategy officer.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that it can coexist with the newer abortion restrictions.
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.
Urmanski had asked the state Supreme Court to overturn Schlipper’s ruling without waiting for a decision from a lower appellate court.
“The implied repeal is something that it looks like they’re legislating from the bench instead of actually doing what they need to do in enforce laws and decide if they’re constitutional, if they’re not constitutional and whether they’re applicable,” said Heather Weininger, Wisconsin Right to Life executive director.
Weininger says her organization’s goal of protecting life from conception to death stays the same, but the group needs to make a culture change so more people say yes to having a family in the state. She says things like being able to claim preborn children on taxes and making adoption more affordable will be a focus rather than pushing for a referendum on abortion.
“I’m a firm believer that we elect our elected representatives here in the state of Wisconsin to represent our desires and we all know where they stand on this issue when we’re out there voting,” said Weininger, who also added she believes most people in the state favor abortion access.
Those happy with the court’s decision want to ensure future generations don’t go through anything similar.
“We can do better through state legislation in establishing protections for continuing access to safe and legal abortion and ensuring that our laws are updated,” said Kaul.
In a dissent, Justice Annette Ziegler called the ruling “a jaw-dropping exercise of judicial will.” She said the liberal justices caved in to their Democratic constituencies.
“Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law,” Ziegler said.
As it stands now, abortions in Wisconsin are only prohibited after a fetus can survive outside the womb, which can be at about the 20-week mark. That law was put in place a decade ago.
The statute Wisconsin legislators adopted in 1849, widely interpreted as a near-total ban on abortions, made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy “an unborn child.”
The ban 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 it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.
A solid majority of Wisconsin voters in the 2024 election, 62%, said abortion should be legal in all or most cases, according to AP VoteCast. About one-third said abortion should be illegal in most cases and only 5% said it should be illegal in all cases.
The Associated Press’ Todd Richmond contributed to this report.
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