Wisconsin Supreme Court to Examine the Validity of an 1849 Abortion Statute

The Wisconsin Supreme Court is scheduled to hear arguments concerning the enforceability of a pre-Civil War abortion statute.

Abortion rights supporters are gathering outside the court as justices consider whether the historic ban, dating back to 1849, can still be applied in modern context.

Given the current composition of the court, which leans liberal, advocates for abortion rights are optimistic about a favorable resolution. Remarks made by a liberal justice during her campaign trail have further fueled this confidence.

The original 1849 law criminalized the act of causing a miscarriage unless necessary to save the mother's life. Subsequent changes in the 1950s refined these provisions, categorizing related acts as a felony. According to these updates, a trio of physicians needed to concur that a termination was essential for the mother's survival.

The 1973 U.S. Supreme Court decision in Roe v. Wade diminished the power of the Wisconsin statute; however, the law itself was not rescinded. With the recent reversal of Roe, debate arose over whether the dormant state ban regained its enforceability.

In 2022, Attorney General Josh Kaul, a Democrat, filed a legal contest against the historic ban. He posits that a 1985 provision allowing abortions before fetal viability implicitly overrides the older law.

Republican District Attorney Joel Urmanski asserts the 1849 law should stand, emphasizing its continuous existence alongside the 1985 law. He insists the latter merely outlined parameters without endorsing the legality of abortion.

A Dane County judge previously decreed that the ancient law applies only to non-consensual feticide. This judgment permitted Planned Parenthood to recommence abortion services in Wisconsin.

In an expedited move, Urmanski petitioned the state Supreme Court to reverse the Dane County decision, bypassing intermediary appellate review.

Simultaneously, Planned Parenthood initiated a separate case urging the Supreme Court to determine if an inherent right to abortion is protected under the state constitution. This matter remains pending as the court has committed to a review.