Wisconsin Supreme Court strikes down abortion ban from 1849

The Wisconsin Supreme Court's liberal majority has struck down a 176-year-old near-total abortion ban, finally protecting access to the care three years after losing it nationally.

The state's highest court ruled 4-3 Wednesday that the legislature "impliedly repealed the 19th century near-total ban on abortion" by passing a law in 1985 that allows abortions up until fetal viability, and after if the health or life of the pregnant person was threatened. Therefore, a law from 1849 "does not prohibit abortion in the State of Wisconsin."

"This case is about giving effect to 50 years’ worth of laws passed by the legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions," the majority wrote. "The legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future."

After the U.S. Supreme Court struck down Roe v. Wade in 2022, abortion providers in Wisconsin were unsure if they would be affected by the centuries-old law, which makes it a felony for anyone other than the person who is pregnant to “intentionally destroy the life of an unborn child.”

Dane County Circuit Judge Diane Schlipper ruled in 2023 the law does not ban consensual abortions, but rather feticide — terminating a pregnancy without consent. The state Supreme Court concurred in its opinion, writing, "we view that paragraph as doing merely what it says it does: creating an exception to the newly enacted feticide statutes."

The Court's decision was along party lines, and comes just a few months after a heated election between liberal Susan M. Crawford and conservative Brad Schimel. Crawford won by ten points and maintained the Court's liberal majority, despite Schimel's anti-transgender attack ads against her and Tesla CEO Elon Musk's $1 million giveaway to two Republican voters.

Executive Director of the ACLU of Wisconsin, Melinda Brennan, said in a statement that "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," Brennan said. "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.”