Justice Jill Karofsky said she fears the Supreme Court is being asked to “sign the death warrant” for women and others as the Sheboygan DA seeks to restore an 1849 law that had been interpreted to ban abortions except to save the life of the mother.
Meanwhile, fellow liberal Rebecca Dallet questioned whether the state could still enforce a law that was written by white, landowning men considering the string of changes made to abortion statutes since then.
During oral arguments yesterday, she told Matt Thome, the attorney for Sheboygan County DA Joel Urmanski, that his ask to restore enforcement of the statute would mean no exceptions to the 175-year-old law for the health of the mother, in cases of incest or for sexual assault.
She added a doctor who performed an abortion on a rape victim would face a more serious consequence in some cases than the perpetrator of the assault.
“I fear what you are asking this court to do is sign the death warrant of women and children and pregnant people in this state,” Karofsky said.
That prompted a quick interjection by conservative Justice Rebecca Bradley, who prodded Thome that he wasn’t “advocating for the policy choices that the people of Wisconsin have chosen through their elected representatives, right? You’re just asking us to construe statute.”
Thome quickly agreed.
“Justice Bradley, all we’re asking is that this court apply a policy decision that the Legislature made by statute that it put on the books,” Thome said.
At another point, Dallet told Thome that restoring the 1849 law would mean ignoring the statute Republicans approved in 2015 barring the procedure after 20 weeks, along with requirements such as a 24-hour waiting period before obtaining an abortion and parental consent for minors. She suggested those changes superseded the 1849 statute.
“What about everything that’s happened since 1849 in the policy choices that you’re talking about that some white men who were property owners made?” Dallet asked.
Rebecca Bradley interjected again, asking Thome, “Are you aware of any principle of law that instructs judges or justices to disregard enactment of the Legislature based on the race or gender of the enactors?”
Thome said he wasn’t and also was unaware of any directive to “disregard a statute based on how old it is.”
A Dane County judge in 2023 ruled the 1849 law doesn’t bar consensual abortions and instead only applies to feticide. In doing so, Judge Diane Schlipper cited a 1994 state Supreme Court ruling involving the law as it applied to a man who was convicted of punching his pregnant wife in the stomach, resulting in the death of her fetus that had been due five days later.
The second question before the court is whether a series of restrictions on abortion that the Legislature approved after the U.S. Supreme Court’s Roe v. Wade decision in 1973 superseded the 1849 law, leaving it unenforceable. That 51-year-old decision was overturned by the U.S. Supreme Court in 2022.
Conservative Justice Brian Hagedorn argued the abortion restrictions imposed after Roe was handed down were simply the Legislature seeking to impose a regulatory regime within what was allowed by the U.S. Supreme Court.
He said the court changed the limits of how far restrictions could go in the nearly 50 years between Roe and the 2022 decision overturning that decision.
“The law is still there. It’s still there,” Hagedorn said. “The judiciary doesn’t get to rewrite them.”
The justices peppered attorneys for both sides with questions over the competing statutes on the books. Thome argued lawmakers had the opportunity to expressly repeal the 1849 law in subsequent statutes.
But Assistant Attorney General Hannah Jurss pointed to a 1985 law that barred abortions once the fetus reached “viability, as determined by reasonable medical judgment of the woman’s attending physician.” That statute created a Class I felony.
She argued that the 1985 law “was absolutely intended” to replace the 1849 statute, which applied from conception.
“The statutes are doing the exact same work, but they direct opposite answers,” she told the court.
Thome, though, later argued it would be “unprecedented” for the court to read a subsequent statute as repealing an earlier one without an express provision doing so. He noted lawmakers considering including such a provision in the 1985 law, but ultimately decided against it.
