Wisconsin Supreme Court blocks 1849 law, allows abortion to continue

MADISON, Wis. - A divided Wisconsin Supreme Court on Wednesday allowed abortions to continue in the state, blocking a 19th-century law that for a time effectively banned the procedure in nearly all instances.

The ruling is a victory for abortion rights advocates - who helped flip the elected court’s ideological makeup in 2023 - and puts protections for the procedure on firmer footing. It represents a setback for abortion opponents in the swing state, who had hoped Wisconsin would join the states that limited or banned the procedure after Roe v. Wade was overturned by the U.S. Supreme Court in 2022.

Health care providers in Wisconsin temporarily stopped offering abortions after that decision three years ago in Dobbs v. Jackson Women’s Health Organization, which ended a constitutional right to abortion in the United States. The providers said they feared they could be prosecuted in Wisconsin under an 1849 law that has been widely viewed as banning most abortions.

Wisconsin Attorney General Josh Kaul (D) sued over the 1849 law within days of the Dobbs ruling in an effort to again secure access to abortion. After a trial judge issued an initial ruling in Kaul’s favor in 2023, Planned Parenthood and other providers resumed providing abortions in the state.

But the long-term legal status of abortion rights in Wisconsin remained uncertain as both sides waited for the state’s high court to weigh in.

On Wednesday, liberals who control the court invalidated the 1849 law. The decision fell along ideological lines, with the four liberal justices in the majority and the court’s three conservatives dissenting.

“Today’s ruling marks a major victory for reproductive freedom following the uncertainty and harm to women’s health that had resulted from the overturning of Roe v. Wade,” Kaul said at a news conference.

The ruling means health care providers can continue to offer abortions until 20 weeks post-fertilization, with the only exception after that point in pregnancies being cases in which the patient’s health is at risk. Wisconsin mandates an ultrasound and a 24-hour waiting period before most abortions.

The state continues to limit medication abortions by requiring that providers dispense abortion pills in person and that patients go for a follow-up visit after taking the medication.

The 1849 law had not been enforced for decades. It was blocked in 1973 when the U.S. Supreme Court issued Roe, but the legislature never took it off the books. Opponents and supporters viewed its language as banning abortion except when the life of the patient was at stake.

In response to Kaul’s suit, Dane County Judge Diane Schlipper ruled in 2023 that the pre-Civil War statute did not ban most abortions, but rather made it a crime to batter a pregnant woman and cause her to lose her pregnancy. Sheboygan County District Attorney Joel Urmanski (R) appealed, and the Wisconsin Supreme Court agreed to hear the case without having it first reviewed by an appeals court.

The high court upheld Schlipper’s finding that abortion is legal in Wisconsin but used different reasoning. The majority concluded the 1849 law had banned nearly all abortions but determined the legislature had functionally repealed it through post-Roe measures addressing “every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions,” Justice Rebecca Dallet wrote for the majority.

“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,” she wrote.

In dissent, Justice Rebecca Bradley accused the majority of invalidating the abortion ban because those justices didn’t like it, rather than for legal reasons. She called their approach an “affront to democracy” and a “threat to our Republic.”

“Electing justices who fancy themselves super legislators … comes at a steep price,” wrote Bradley, who is up for election next year. “The People of Wisconsin have surrendered self-governance to four liberal lawyers.”

Planned Parenthood’s decision to resume offering abortions in 2023 came shortly after liberals took the majority on the state Supreme Court after 15 years of conservative control. They maintained their 4-3 majority in an election this spring and are on track to hold it until at least 2028.

Wednesday’s decision came as the U.S. House debates a wide-ranging tax and immigration bill that would strip federal funding from Planned Parenthood, which the organization has said would force it to close about 200 clinics that provide cancer screenings and other services. Planned Parenthood has 21 clinics in Wisconsin but offers abortion only at facilities in Milwaukee, Madison and Sheboygan. Two other providers also offer abortions in Milwaukee.

Gov. Tony Evers (D) praised Wednesday’s decision and said he wanted to do more to protect reproductive rights and access to in vitro fertilization.

“Today is a win for women and families, a win for healthcare professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over,” he said in a statement.

Heather Weininger, executive director of Wisconsin Right to Life, decried the outcome and cast it as a political ruling. “It just shows that the liberal side of our Wisconsin state Supreme Court continues to legislate from the bench,” she said.

Weininger’s group helped pass the state’s 20-week ban in 2015, and she said it would push for new abortion restrictions. Enacting new limits would be extremely difficult, however, because the governor has consistently vetoed such bills during his seven years in office.

Republicans who control the legislature did not immediately say whether they would try to pass other restrictions. At a news conference, Senate Majority Leader Devin LeMahieu said the court’s liberal justices “went rogue and overturned legislative power.”

The court on Wednesday also dismissed a separate, related petition from Planned Parenthood of Wisconsin that sought to determine whether the state constitution guarantees a right to abortion. The court cited its ruling on the 1849 law in dropping the Planned Parenthood case.

Advocacy groups could continue trying to litigate whether there is a right to the procedure under the state constitution, said Miriam Seifter, a professor at the University of Wisconsin Law School. But for now, Wednesday’s ruling ends a complicated, three-year conflict over the state’s abortion laws.

“The question all along has been, how do they fit together?” she said.

Last week, the U.S. Supreme Court allowed South Carolina to cut off Medicaid funding for Planned Parenthood there because of its abortion services. That ruling, along with the congressional plan to end the organization’s Medicaid funding nationally, signals a bumpy road ahead for abortion rights, said Tanya Atkinson, chief executive of Planned Parenthood of Wisconsin.

Atkinson described the Wisconsin Supreme Court ruling as a victory but said the group would continue efforts to secure additional abortion protections in the state.

“This is not the end of the fight,” she said. “This is fuel for our work.”