Wisconsin Supreme Court Debates Reinstating Abortion Ban Law

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 Liberal justices sharply criticized the potential consequences, arguing the ban reflects outdated values and lacks necessary exceptions.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• Arguments from the DA: Urmanski argues the ban still stands, as Wisconsin lawmakers never repealed it, and it should coexist with modern abortion restrictions.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

On Monday, the Wisconsin Supreme Court convened to hear arguments in a highly charged case surrounding the revival of the state’s nearly 175-year-old abortion ban. The 1849 law, which prohibits nearly all abortions without exceptions for rape or incest, is being championed by Sheboygan County’s Republican district attorney, Daniel Urmanski, who argues the ban remains enforceable despite the passage of a more permissive 1985 state law. This ban, which predates the Civil War and Roe v. Wade by more than a century, was nullified by Roe’s legalization of abortion in 1973. However, following the U.S. Supreme Court’s 2022 reversal of Roe, Wisconsin conservatives argue the ban should be reinstated, contending that it was never formally repealed.

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.

The DA’s attorney, Matthew Thome, defended Urmanski’s push to reactivate the law, stating that while newer abortion restrictions permit abortion up to fetal viability, they did not expressly legalize abortion or repeal the 1849 ban. He suggested the two statutes could function in parallel, arguing that laws addressing the same issue can coexist, much like criminal statutes that impose different penalties for similar acts. Thome further argued that assuming the 1985 law repealed the 1849 ban by implication would be “anti-democratic,” as it would override legislative intent.

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.

The case has taken on new significance following last year’s ruling by Dane County Circuit Judge Diane Schlipper. Schlipper found that the 1849 law applies specifically to feticide—defined as the act of terminating a fetus without the mother’s consent—and thus does not apply to consensual abortions. Schlipper’s ruling allowed Planned Parenthood to resume abortion services in Wisconsin after halting them post-Roe. Urmanski’s legal team appealed this decision directly to the state Supreme Court, seeking a quick resolution without intermediate appellate review.

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.

The ruling, anticipated within weeks, could significantly influence Wisconsin’s legal landscape around abortion rights, potentially setting a precedent for how other states address similar historical abortion laws. In the meantime, with a liberal-leaning court and a strong stance from its justices, the outcome is expected to favor abortion rights advocates, affirming access to healthcare for women in Wisconsin and blocking a law that many see as a relic of the past.

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