Marking a major win for abortion rights advocates across Wisconsin, the state Supreme Court on Wednesday issued a split decision repealing the state's Civil War-era law that had widely been interpreted as a near-complete abortion ban.
The 175-year-old law was deemed unenforceable following the 1973 Roe v. Wade decision established abortion as a constitutional right, but remained in state statute. In the summer of 2022, the U.S. Supreme Court's decision in Dobbs v. Jackson overturned Roe, leaving Wisconsin's 1849 law, which lists killing a fetus as manslaughter unless the procedure was conducted in order to save the mother's life, on the books.
But in a 4-3 ruling, the Wisconsin Supreme Court's liberal majority ruled the 1849 law had been "impliedly repealed" by a host of changes enacted by the state Legislature in the years that followed Roe, including a 1994 state Supreme Court ruling that found the law only applied to somebody killing a fetus by assaulting its mother, not abortions.
"Plaintiffs filed this lawsuit seeking a declaration that (state statute) — a statute dating back to 1849 that criminalizes the intentional destruction of an unborn child — does not ban abortion," Justice Rebecca Dallet wrote in the majority opinion.
"We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the 'who, what, where, when, and how' of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion," Dallet wrote.
Dallet was joined in the ruling by her liberal colleagues, justices Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz. Conservative justices Annette Ziegler, Rebecca Bradley and Brian Hagedorn dissented in the ruling.
Writing in dissent, Ziegler offered a scathing review of the decision, which she called "a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law."
"The majority’s analysis is fundamentally flawed, and the majority is compromised when it comes to the issue of abortion," Ziegler wrote.
After Roe was struck down, Democratic Attorney General Josh Kaul asked a Dane County Circuit Court judge to declare the 1849 law didn’t apply to abortion. Kaul argued the law conflicted with later, more permissive abortion laws and court decisions.
In December, Dane County Judge Diane Schlipper concurred, finding that the law only applied to feticide.
Attorneys for Sheboygan County District Attorney Joel Urmanski, a Republican, asked the state Supreme Court to rule on the matter. Urmanski has said he believes the law, which is titled “Abortion,” also covers the procedure.
But members of the court’s 4-3 liberal majority said the law has been overtaken by subsequent laws and doesn’t allow for a host of circumstances, including pregnancies resulting from rape or incest, fetal abnormalities or when the health of the mother is in danger.
Dallet noted in the ruling the Legislature "as the peoples’ representatives, remains free to change the laws with respect to abortion in the future."
Wisconsin Democrats quickly praised the decision, with Sen. Mark Spreitzer, D-Beloit, calling it "a critical step forward."
"I look forward to working with my colleagues to bolster the fundamental healthcare rights of Wisconsinites and to ensure they have access to the reproductive healthcare they need," he said.
Rep. Lindee Brill, R-Sheboygan Falls, accused the court's liberal majority of handing down "a reprehensible, partisan decision."
"Judges should make decisions based on the law and the facts of the case, not their personal political opinions," Brill said.
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