Wisconsin Supreme Court to hear argument on 1849 abortion law

The Dairy State’s highest court agreed on Tuesday to hear two cases relating to abortion law, according to a Wisconsin court announcement. The first case is an appeal by Sheboygan County District Attorney Joel Urmanski, who believes a 19th-century state law still should protect all babies from abortion. The second case is a lawsuit brought by Planned Parenthood of Wisconsin against Urmanski, arguing the state’s constitution includes abortion as a right and that the old law should be overturned. At the same time, the seven-judge panel denied requests from Wisconsin Right to Life, Wisconsin Family Action, and Pro-Life Wisconsin to join the case. The pro-life groups will be allowed to file amicus briefs highlighting additional arguments and information justices should consider before ruling.

How is there a question of whether a law applies, even if it is old? Wisconsin’s 1849 statute barred any person other than the mother from intentionally destroying unborn life. The provision added that any violence against a mother intended to kill the unborn child would also result in felony charges. The pre-Civil War law does allow doctors to perform abortions to save the life of the mother. The 2022 overturning of Roe v. Wade recodified the 175-year-old statute.

A district judge last year ruled that abortions were allowed by the 1849 statute if consented to by the mother. The law’s original intent was to protect pregnant women from infanticidal attacks by another person, not to bar all abortion procedures, the judge decided. However, Urmanski took issue with the ruling and appealed for the Supreme Court to overturn it in February. This prompted Planned Parenthood of Wisconsin to sue Urmanski and argue that the state’s constitution gives citizens the right to abortion.

What does the state constitution say to support abortion? Planned Parenthood argued that bodily autonomy and self-determination are parts of the rights to life, liberty, and the pursuit of happiness established in the state’s constitution.

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