Wisconsin Supreme Court strikes down century-old pro-life law

The state’s highest court on Wednesday ruled 4-3 against the 19th century law, saying it is superseded by newer laws. Passed before the Civil War, the measure made abortion a felony except in cases where the mother’s life is in danger. The high court’s liberal majority on Wednesday affirmed a lower court ruling that overturned the 176-year-old legislation and said it only applied to feticide, not the protection of unborn babies. In her dissent, Supreme Court Justice Annette Ziegler wrote the ruling placed personal preference over the constitutional roles of the branches of state government. No legislation truly repealed the 1849 law, Ziegler wrote. She added that the Wisconsin State Legislature, not the courts, needed to address the issue of abortion in light of the U.S. Supreme Court’s 2022 Dobbs decision.

Wisconsin Supreme Court judges in November heard arguments regarding the state’s first pro-life law that dates back to 1849.

How did we get here? The original law was in effect until 1973 when the U.S. Supreme Court ruled in Roe v. Wade to legalize abortion nationwide. When SCOTUS overturned the ruling in 2022, the statute was recodified and Attorney General Josh Kaul filed a lawsuit to throw it out for good. After a lower court ruled the law did not apply to abortions, Sheboygan District Attorney Joel Urmanski appealed the ruling to the state Supreme Court. He asked the high court to clarify if Wisconsin’s constitution protects unborn babies from abortion. Another case brought by Planned Parenthood of Wisconsin against the law is still pending.

What laws have been passed since 1849 related to abortion? The Wisconsin legislature in 1985 approved a law that protects unborn babies from abortion after they reach viability, typically at about 20 weeks of pregnancy. Another law passed in 2015 protects babies after medical professionals consider them capable of feeling pain, also at about 20 weeks of pregnancy. Both laws have exceptions for instances when a mother’s life may be in danger but stipulate that a physician should only end a pregnancy in a way that provides the best opportunity for the baby to survive. State law also prohibits abortionists from dispensing abortion drugs online or through telehealth. 

Dig deeper: Read Christina Grube’s report with Mary Jackson in WORLD Magazine about the controversy surrounding a pre-civil war abortion statute in Arizona.