Wisconsin Supreme Court throws out 1849 abortion ban

A split state Supreme Court today invalidated an 1849 law that had been interpreted as banning all abortions.

Writing for the majority in a 4-3 ruling, liberal Justice Rebecca Dallet found changes the state has made to abortion laws over the past 50 years implicitly repealed the 1849 statute.

Dallet added the changes touched “virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions.”

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She was joined by fellow liberals Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz.

“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” Dallet wrote.

On the heels of invalidating the 1849 law, the court also dismissed a separate suit that Planned Parenthood filed last year seeking a declaration that the Wisconsin Constitution guarantees the right to an abortion. The court found that case now moot, though it didn’t offer any comment on why.

The 1849 law hadn’t been enforced after the U.S. Supreme Court guaranteed the right to an abortion in 1973. But it was thrust back into the spotlight after the court in 2022 reversed that ruling, leaving abortion laws up to individual states.

Planned Parenthood stopped performing abortions following the U.S. Supreme Court’s Dobbs ruling, citing the 1849 law. 

The statute then became the focal point of the 2022 elections in Wisconsin and was a significant factor in Justice Janet Protasiewicz’s 2023 win as she flipped control of the state Supreme Court in liberals’ favor for the first time in 15 years. The former Milwaukee County judge campaigned on her support of abortion rights.

Later that year, a Dane County judge put the abortion statute on hold, and it hadn’t been enforced since.

In her dissent, conservative Justice Annette Ziegler wrote the majority had scrubbed from state statutes an abortion law without identifying any legislative action to explicitly repeal the law. She wrote that runs contrary to the doctrine of implied repeal and accused the majority of reaching its conclusion “because they like the result and promised to deliver it.”

Fellow conservatives Rebecca Bradley and Brian Hagedorn also dissented.

“The majority opinion is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law,” Ziegler wrote.

During oral arguments in November, Karofsky said she feared the court was being asked to “sign the death warrant” for women and others as Sheboygan County DA Joel Urmanski asked the justices to affirm the 1849 law.

In her concurring opinion today, Karofsky delved into the history of abortion in the United States. She also detailed the stories of four women she said had died because they lived in states that severely restricted abortion access the way Urmanski had interpreted the 1849 law.

One of them was Karofsky’s great-grandmother. Karofsky wrote she was pregnant with what would’ve been her fourth child and “took matters into her own hands” as she sought to end the pregnancy. Julia Cowan ultimately bled to death in a Boston hospital in 1929.

“Like so many others, she died because society did not recognize her as someone with the ‘dignity and authority to make these choices,’” wrote Karofsky, who became chief justice yesterday.

See reaction at the WisPolitics press release page.