Wisconsin Supreme Court to Rule on 175-Year-Old Abortion Law

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Explore the upcoming Wisconsin Supreme Court deliberation on the enforceability of a 175-year-old abortion law. Understand the historical context, legal challenges, and potential implications for reproductive rights in Wisconsin. Discover how the court’s liberal majority and recent federal rulings may influence the outcome.

Wisconsin Supreme Court to Rule on 175-Year-Old Abortion Law
Wisconsin Supreme Court to Rule on 175-Year-Old Abortion Law

Wisconsin Supreme Court to Consider 175-Year-Old Law on Abortion

The Wisconsin Supreme Court is set to deliberate on the constitutionality and enforceability of a 175-year-old law that purportedly bans abortion. This decision arises amidst two significant challenges to the statute, with implications for the state’s legal landscape regarding reproductive rights. The high court’s liberal majority, recent historical shifts in federal abortion jurisprudence, and the contentious political climate all set the stage for a pivotal judicial review.

Historical Context

In 1849, Wisconsin lawmakers enacted statutes widely interpreted as banning abortion in nearly all circumstances, except to save the mother’s life. These laws, dormant for decades due to the landmark 1973 Roe v. Wade decision by the U.S. Supreme Court, were effectively nullified but never repealed. The 2022 U.S. Supreme Court decision overturning Roe v. Wade reactivated these antiquated statutes, rekindling legal and political debates over abortion rights in Wisconsin.

The Legal Challenge

Democratic Attorney General Josh Kaul spearheaded a legal challenge against the 1849 statutes in 2022. He argued that these laws were archaic and that a 1985 law permitting abortions before fetal viability should take precedence. A Dane County judge ruled last year that the 1849 statutes criminalized the assault on a pregnant woman with the intent to kill her unborn child but did not ban abortions per se. This ruling led Planned Parenthood to resume abortion services in Wisconsin, having previously ceased operations following the overturning of Roe v. Wade.

Direct Appeals to the Supreme Court

Sheboygan County District Attorney Joel Urmanski, a Republican, sought a direct appeal to the Wisconsin Supreme Court, bypassing lower appellate courts. Urmanski contended that the Dane County ruling would have significant statewide implications and that the Supreme Court would ultimately need to resolve the matter. Shortly after Urmanski’s appeal, Planned Parenthood of Wisconsin also petitioned the Supreme Court for a direct ruling. They sought a declaration that the 1849 statutes are unconstitutional, arguing that the state constitution guarantees a woman’s right to control her own body under the right to life, liberty, and the pursuit of happiness.

The Supreme Court’s Decision

The Wisconsin Supreme Court issued orders indicating a unanimous vote to take Urmanski’s appeal and a 4-3 vote to take the Planned Parenthood case. The liberal justices voted to hear the Planned Parenthood case, while the conservative justices opposed it. This decision underscores the court’s willingness to address the significant constitutional questions surrounding abortion rights in Wisconsin.

Judicial and Political Dynamics

The court’s liberal majority, coupled with public statements by liberal Justice Janet Protasiewicz supporting abortion rights, suggests a challenging environment for upholding the 1849 statutes. Protasiewicz’s campaign remarks represented a significant departure from typical judicial candidate behavior, where candidates often avoid disclosing personal views to maintain an appearance of impartiality. The conservative justices criticized the liberal majority for allegedly politicizing the judiciary, with Justice Hagedorn accusing them of following party lines rather than legal principles.

Justice Jill Karofsky, in her concurrence, defended the court’s decision to take the case, emphasizing the profound personal and practical significance of abortion regulation for many Wisconsinites. She asserted that the state Supreme Court is obligated to address important constitutional questions, regardless of the controversial nature of the issues involved.

Responses from Advocacy Groups

Planned Parenthood of Wisconsin expressed gratitude for the court’s decision to hear its case, highlighting the need for clarity on the legality of abortion in the state. Michelle Velasquez, the organization’s chief strategy officer, emphasized the importance of providing Wisconsin residents with a definitive legal framework regarding abortion services.

Conversely, anti-abortion groups condemned the Supreme Court’s decision to take the Planned Parenthood case. Heather Weininger, executive director of Wisconsin Right to Life, criticized the move as a weaponization of the judicial system to support abortion access, which she described as “death on demand.”

Broader Implications

The Wisconsin Supreme Court’s forthcoming decisions could set significant precedents regarding state-level abortion rights and the interpretation of constitutional protections. The outcomes will likely influence legislative and judicial approaches to reproductive rights within Wisconsin and potentially other states grappling with similar issues. Furthermore, these decisions could signal the judiciary’s stance on balancing historical statutes with contemporary constitutional interpretations.


The Wisconsin Supreme Court’s consideration of the 175-year-old abortion law represents a critical juncture in the state’s legal and political landscape. The court’s decisions will not only affect the legality of abortion services in Wisconsin but also reflect broader societal and constitutional debates. As the court deliberates, the implications for reproductive rights, judicial integrity, and legislative clarity will be closely watched by advocates, lawmakers, and citizens alike. The tension between historical statutes and modern constitutional interpretations underscores the evolving nature of legal discourse and the ongoing struggle to define and protect individual rights in America.

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