Wisconsin Supreme Court’s liberal majority strikes down 176-year-old
abortion ban
[July 03, 2025]
By TODD RICHMOND
MADISON, Wis. (AP) — The Wisconsin Supreme Court’s liberal majority
struck down the state’s 176-year-old abortion ban on 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4-3 that it was superseded by newer state laws regulating the procedure,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.
The ruling came as no surprise given that liberal justices control the
court. One of them went so far as to promise to uphold abortion rights
during her campaign two years ago, and they blasted the ban during oral
arguments in November.
Ban outlawed destroying ‘an unborn child’
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Legislators never officially repealed it, however, and conservatives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.
Ruling: Post-Roe laws effectively replaced ban
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that
year arguing that abortion restrictions enacted by Republican
legislators during the nearly half-century that Roe was in effect
trumped the ban. Kaul specifically cited a 1985 law that essentially
permits abortions until viability. Some babies can survive with medical
help after 21 weeks of gestation.
Lawmakers also enacted abortion restrictions under Roe requiring women
to undergo ultrasounds, wait 24 hours before having the procedure and
provide written consent, and receive abortion-inducing drugs only from
doctors during an in-person visit.
“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.
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.
Liberal justices signaled repeal was imminent
The liberal justices all but telegraphed how they would rule. Justice
Janet Protasiewicz stated on the campaign trail that she supports
abortion rights. During oral arguments, Dallet declared that the ban was
authored by white men who held all the power in the 19th century.
Justice Jill Karofsky likened the ban to a “death warrant” for women and
children who need medical care.
[to top of second column]
|
Wisconsin Attorney General Josh Kaul delivers remarks following
hearing before Dane County Wis. judge Diane Schlipper which
challenges a 174-year-old feticide law in Madison, Wis., May 4,
2023. (John Hart/Wisconsin State Journal via AP, File)
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.
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.
Urmanski's attorney, Andrew Phillips, didn't respond to an email.
Kaul told reporters during a news conference that the ruling is a
“major victory” for reproductive rights.
Heather Weininger, executive director of Wisconsin Right to Life,
called the ruling “deeply disappointing.” She said that the liberals
failed to point to any statute that explicitly repealed the 1849
ban.
“To assert that a repeal is implied is to legislate from the bench,”
she said.
Court dismisses constitutional challenge
Planned Parenthood of Wisconsin asked the Supreme Court in February
2024 to decide whether the ban was constitutional. The court
dismissed that case with no explanation Wednesday.
Michelle Velasquez, chief strategy officer for Planned Parenthood of
Wisconsin, said Wednesday's ruling creates stability for abortion
providers and patients, but she was disappointed the justices
dismissed the constitutional challenge. She hinted that the
organization might look next to challenge the state's remaining
abortion restrictions.
Kaul said he has no plans to challenge the remaining restrictions,
saying the Legislature should instead revisit abortion policy.
Democratic-backed Susan Crawford defeated conservative Brad Schimel
for an open seat on the court in April, ensuring liberals will
maintain their 4-3 edge until at least 2028. Crawford has not been
sworn in yet and was not part of Wednesday’s ruling.
Abortion fight figures to play in 2026 court race
Abortion figures to be a key issue again next spring in another race
for a state Supreme Court seat. Chris Taylor, a state appellate
judge who served as Planned Parenthood of Wisconsin's policy
director before a stint as a Democratic legislator, is challenging
conservative Justice Rebecca Bradley.
Taylor's campaign sent out an email Wednesday calling the ruling a
“huge victory” and asking for donations. She issued a statement
calling the decision the correct one and blasting Bradley's dissent
as “an unhinged political rant.”
Bradley wrote that the four liberal justices fancy themselves “super
legislators” and committed "an affront to democracy."
All contents © copyright 2025 Associated Press. All rights reserved |
