Wisconsin Supreme Court Debates Reinstating Abortion Ban Law \ Newslooks \ Washington DC \ Mary Sidiqi \ Evening Edition \ Wisconsin’s Supreme Court held a heated debate Monday over reactivating the state’s 1849 abortion ban, with liberal justices questioning its relevance and implications. Sheboygan County DA Daniel Urmanski, a Republican, is pushing to reinstate the law, countering a lower court ruling that invalidated it. Liberal justices sharply criticized the potential consequences, arguing the ban reflects outdated values and lacks necessary exceptions. With a liberal majority, the court is expected to rule against reinstatement, but a decision could take weeks.
Wisconsin Abortion Ban Debate Quick Looks
- Background: Wisconsin’s 1849 abortion ban prohibits nearly all abortions without exceptions for rape or incest, a statute Sheboygan County DA Daniel Urmanski wants to revive after Roe v. Wade’s repeal.
- Court’s Liberal Majority: Liberal justices Janet Protasiewicz, Rebecca Dallet, and Jill Karofsky challenged the push to reactivate the ban, questioning its alignment with modern standards and women’s rights.
- Arguments from the DA: Urmanski argues the ban still stands, as Wisconsin lawmakers never repealed it, and it should coexist with modern abortion restrictions.
- Justice Dallet’s Response: Dallet argued that reverting to an 1849 law, passed solely by white men in power, disregards decades of progress and newer laws.
- Justice Karofsky’s Critique: Karofsky argued the reactivation would endanger women, effectively signing a “death warrant” by withholding critical healthcare services.
- Dane County Ruling: A Dane County judge previously ruled the ban applies only to nonconsensual terminations, allowing Planned Parenthood to resume services.
- State and National Repercussions: The outcome could set a precedent for how older, pre-Roe laws are addressed in the post-Roe legal landscape, impacting abortion rights in Wisconsin and beyond.
- Liberal Justices’ Expected Ruling: With liberals in control of the Wisconsin Supreme Court, the state’s abortion rights are expected to remain intact, with a final decision due in coming weeks.
Deep Look
The hearing drew intense questioning from the court’s liberal justices, who now hold a 4-3 majority. Justice Rebecca Dallet voiced sharp criticism of the attempt to revive an 1849 statute, calling it undemocratic to impose an antiquated law created by “white men who held all the power” in a vastly different era. Dallet argued that this approach ignores the legislative progress of the past 40 years, stating that disregarding these advances to apply an 1849 standard would undermine democratic principles.
Justice Jill Karofsky took an equally impassioned stance, warning that reactivating the law could endanger women and children in Wisconsin. With the law’s complete absence of exceptions for rape or incest, Karofsky argued that reinstatement would effectively “sign a death warrant” for many women by compelling them to forgo critical medical care. She cautioned that the law could compel doctors to withhold life-saving treatments, further illustrating the potential dangers of imposing pre-modern legislation on a modern society.
Dallet challenged this viewpoint, contending that such a stance ignores the broader trajectory of legislative evolution in Wisconsin, where lawmakers and society have clearly moved toward more comprehensive women’s healthcare protections. “It is not democratic to dismiss 40 years of new laws for a statute written in a completely different era,” she asserted.
The 1849 ban prohibits abortion with no exception for cases of rape or incest, and until Roe v. Wade nullified it in 1973, it served as the governing abortion law in Wisconsin. In 2022, following the repeal of Roe, Democratic Attorney General Josh Kaul launched a lawsuit challenging the enforcement of the 1849 ban, arguing that the 1985 law—which permits abortion before fetal viability, generally considered around 21 weeks with medical assistance—overrides the older ban. Kaul’s team argued that the viability threshold established in the 1985 statute should govern current practices, making the 1849 law obsolete.
During Monday’s hearing, Thome maintained that his argument was not intended to debate policy or the broader implications of abortion restrictions but to clarify legal precedence. He argued that the courts cannot assume newer laws implicitly repeal older ones without explicit language to that effect, noting that this approach could set an “anti-democratic” precedent.
The current political and legal makeup of the court strongly suggests that abortion rights advocates will likely prevail. Liberal Justice Janet Protasiewicz, who openly expressed support for abortion rights during her campaign, represents a crucial liberal vote. The liberal justices’ sharp questioning reflects a majority that is expected to preserve abortion access in Wisconsin, likely blocking Urmanski’s attempt to reactivate the restrictive 1849 law.
Additionally, Planned Parenthood of Wisconsin has filed a separate lawsuit asking the state Supreme Court to establish a constitutional right to abortion under Wisconsin’s constitution. The court agreed to hear this case but has not scheduled oral arguments yet.
