During heated oral arguments on Monday morning, the Wisconsin supreme court appeared poised to find an 1849 law banning most abortions cannot be enforced.
The legal status of abortion in Wisconsin has been contested since the US supreme court overturned Roe v Wade and ended the right to abortion nationwide, triggering bans across the country – including in Wisconsin, where a 175-year-old ban immediately went into effect.
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Democrats in Wisconsin have seized on abortion as a campaign issue, with Justice Janet Protasiewicz expressing her support for abortion rights and winning a seat on the court in spring 2023. Protasiewicz’s election to the court helped flip the ideological balance on the bench, which is now controlled by a narrow liberal majority.
It is highly unlikely the liberal-controlled court will uphold the ban.
The 1849 statute, which was nullified by Roe v Wade and then reanimated when the landmark decision was overturned, declares that ending “the life of an unborn child” is a felony, except when required to save the life of the mother. In July 2023, a Dane county judge ruled that the 1849 ban applies only to feticide and not “consensual” abortion, citing a previous ruling that interpreted the statute as an anti-feticide law, and in September, providers including Planned Parenthood resumed offering abortion care.
The Sheboygan county district attorney Joel Urmanski appealed the ruling, which is now before the Wisconsin supreme court.
“The position of the circuit court below … is ultimately indefensible,” said Matthew Thome, an attorney representing Urmanski, during his opening argument. Thome argued that the 1849 law should be interpreted to “prohibit consensual abortions from conception until birth, subject to an exception when it is necessary to save the life of the mother”.
Justice Jill Karofsky interrogated Urmanski’s interpretation of the law, asking if it would provide exceptions for rape, incest, the health of the mother, or fetal abnormalities.
“Just to be clear, a 12-year-old girl who was sexually assaulted by her father and as a result, became pregnant, under your interpretation … she would be forced to carry her pregnancy to term?” asked Karofsky. She noted that the “penalty for aborting after a sexual assault would be more severe than the penalty for the sexual assault”.
In response to a question about the medical consequences of a ban, Thome responded that he was unsure, given that he is “not a doctor”.
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“I fear that what you are asking this court to do is to sign the death warrants of women and children and pregnant people in this state, because under your interpretation, they could all be denied life saving medical care, while the medical professionals who are charged with taking care of them are forced to sit idly by,” said Karofsky.
The court weighed the question of whether laws that were passed regulating abortion while Roe was in effect “impliedly repealed” the 1849 ban and rendered it unenforceable.
“All of those statues” passed after 1973 and before it was overturned, “just go to the dust pile?” asked Karofsky.
Justice Brian Hagedorn, a conservative-leaning judge, argued, of the 1849 ban, that “the law is still there”, adding that “the judiciary doesn’t get to edit laws, the judiciary doesn’t get to rewrite them, we didn’t delete it, we prevented its enforcement”.
The assistant attorney general Hannah Jurss disagreed, arguing that “there is nothing in the text of these statutes that says in the event that Roe is overturned we somehow go back to the old law and throw out all of the new ones,” drawing a distinction between Wisconsin’s more than a century old law and “trigger” laws passed in certain states that were specifically designed to go into effect after Roe v Wade was overturned.
A separate case, which the Wisconsin supreme court has also agreed to hear, would decide whether the right to abortion is protected under the state’s constitution – possibly opening the door to challenge other laws regulating abortion in the state.
