In a landmark decision, the Wisconsin Supreme Court has ruled that a historic 176-year-old law does not prohibit abortions, ensuring the procedure remains legal in the state.
According to The Hill, this ruling clarifies that more recent legislation over the past several decades has effectively replaced the outdated 1849 statute, securing access to reproductive healthcare for Wisconsinites.
The legal battle over abortion in Wisconsin intensified following the U.S. Supreme Court's Dobbs decision in June 2022. That ruling overturned Roe v. Wade, leading to immediate uncertainty about the status of abortion services in the state. Many interpreted the 1849 law as imposing a near-total ban, causing providers to pause services out of fear of prosecution.
Democratic Attorney General Josh Kaul took action by filing a lawsuit to challenge the old statute. He argued that the law's original intent and subsequent interpretations did not align with a complete prohibition on abortions. A lower court judge allowed the case to move forward, agreeing that the law targeted acts against a fetus without maternal consent, not abortion itself.
The Wisconsin Supreme Court, in a 4-3 decision on Wednesday, sided with Kaul's position. Justice Rebecca Dallet, writing for the liberal majority, emphasized that newer laws have comprehensively addressed reproductive rights. She noted, “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.”
The court's liberal majority, solidified after Justice Janet Protasiewicz's election in 2023, played a key role in the ruling. Protasiewicz had openly campaigned on supporting access to abortion, influencing the ideological balance of the bench. This shift gave advocates confidence that the challenge to the 1849 law would find favorable ground.
Not all justices agreed with the majority's interpretation of the law. Justice Annette Ziegler, in her dissent, warned against what she saw as overstepping judicial boundaries. She stated, “Today’s decision may be popular, but the result comes at great cost to the constitution and the rule of law.”
Ziegler further criticized the ruling's implications for the judiciary's purpose. She added, “While the expediency of this result might be quite satisfactory to many, it is not the constitutional role of the court to deliver results in order to please a particular constituency.” Her words underscored a deep divide on the court over the balance of power.
The ruling drew sharp responses from political figures across the spectrum. Brian Schimming, chair of the Wisconsin Republican Party, condemned the decision as an overreach by the judiciary. He argued, “The Wisconsin Supreme Court’s role is to follow the Constitution, not to make law. This issue should be resolved in the legislature and by voters, not by far-left justices parading as legislators.”
On the other side, Governor Tony Evers hailed the outcome as a win for personal freedoms. He affirmed his commitment to protecting reproductive rights, stating, “I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin than it is today.” Evers added, “That is a promise.”
Planned Parenthood Advocates of Wisconsin also expressed relief at the court's decision. They issued a statement welcoming the clarity provided by the ruling on abortion access. The group noted, “We will continue essential work to help protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive health care in our state can get the nonjudgmental and compassionate care they deserve.”
The decision has immediate implications for healthcare providers in Wisconsin. With legal uncertainty lifted, clinics can resume services without fear of prosecution under the outdated law. This ensures that patients seeking care can access it within the state’s borders.
Despite the ruling, the debate over reproductive rights in Wisconsin is far from over. Opponents of the decision are likely to push for legislative changes to reinstate restrictions. Meanwhile, supporters remain vigilant, aware that future challenges could emerge. Public opinion on abortion remains deeply divided in the state, reflecting national trends. The court's ruling may galvanize both sides to mobilize ahead of future elections. Voters could ultimately play a decisive role in shaping the legal landscape.
This decision comes amid a broader national struggle over abortion rights following the Dobbs ruling. States across the country are grappling with similar questions about historic laws and modern policies. Wisconsin’s outcome could serve as a precedent for other legal battles elsewhere. For now, the ruling provides much-needed clarity for medical professionals in Wisconsin. They can focus on patient care without the looming threat of legal repercussions. However, the evolving political climate suggests that stability may be temporary.