The Wisconsin Supreme Court announced on Tuesday its decision to review two challenges to a 175-year-old law that conservatives argue bans abortion without allowing the cases to proceed through lower courts.
Those in support of abortion rights have a strong likelihood of succeeding in both cases due to the liberal leanings of the high court and comments made by a liberal justice during her campaign expressing support for abortion rights.
In 1849, Wisconsin legislators enacted laws that were widely understood to prohibit abortion except in cases where it was necessary to save the life of the mother. Although the U.S. Supreme Court’s Roe v. Wade decision in 1973 invalidated these laws, they were never officially repealed. The 2022 decision by the high court to overturn Roe v. Wade effectively reinstated these statutes.
Democratic Attorney General Josh Kaul filed a lawsuit in 2022 challenging the outdated laws, arguing that they were unenforceable and that a 1985 statute allowing abortions before a fetus can survive outside the womb takes precedence. A ruling by a Dane County judge last year indicated that the laws prohibited attacking a pregnant woman to harm her unborn child but did not outlaw abortions. This ruling encouraged Planned Parenthood to resume providing abortion services in Wisconsin after halting them following the Roe v. Wade reversal.
Sheboygan County District Attorney Joel Urmanski, a Republican, urged the state Supreme Court in February to overturn the Dane County judge’s decision without waiting for the case to go through lower appellate courts. Urmanski contended that the ruling would have broad implications statewide and that the matter would inevitably reach the Supreme Court.
Shortly after Urmanski made his request, Planned Parenthood of Wisconsin filed a lawsuit against him and asked the Supreme Court to address the issue directly. The organization seeks a ruling declaring the 1849 laws unconstitutional, citing the state constitution’s affirmation of individuals’ rights to life, liberty, and the pursuit of happiness as grounds for women to have autonomy over their bodies, essentially requesting the court to recognize a constitutional right to abortion.
The court announced that it had unanimously agreed to hear Urmanski’s appeal and had a vote of 4-3 to consider the Planned Parenthood case. The court’s four liberal justices supported hearing the latter case, while the three conservative justices dissented.
Attorneys for Urmanski, Andrew Phillips and Matthew Thome, did not respond immediately to a request for comment.
It appears highly unlikely that the court’s liberal faction would uphold the old laws given their strong stance in favor of abortion rights. Justice Janet Protasiewicz openly declared her support for abortion rights during her campaign, a departure from the typical practice of judicial candidates refraining from expressing personal views to avoid bias concerns on the bench.
Conservative justices criticized the majority’s decision to take up the Planned Parenthood case, accusing them of playing politics. Justice Jill Karofsky defended the court’s role in deciding significant state constitutional issues, acknowledging the importance of abortion regulation to many residents of Wisconsin.
Planned Parenthood’s Chief Strategy Officer, Michelle Velasquez, expressed gratitude that the court agreed to hear their case, emphasizing the need for clarification on the legality of abortion in Wisconsin.
Following a leak of the draft order accepting the case to media outlet Wisconsin Watch, Chief Justice Annette Ziegler called for an investigation.
Groups opposing abortion condemned the Supreme Court’s choice to consider the Planned Parenthood case, with Heather Weininger, executive director of Wisconsin Right to Life, denouncing the decision as a misuse of the court system to establish widespread access to abortion.
This story has been updated to correct an error regarding the day in the first sentence to Tuesday, not Monday.
