The Wisconsin Supreme Court’s liberal majority struck down the state’s long-standing abortion ban, which dated back 176 years, ruling by a narrow 4-3 margin that more recent state legislation regulating abortion effectively nullifies the older statute. These recent laws stipulate that abortions become criminal acts only when a fetus reaches the point of viability outside the womb.
The outcome was largely anticipated since the court leans liberal, with certain justices having openly vowed during their campaigns to protect abortion rights. During preceding court hearings, there was expressed discontent towards the archaic ban.
Originating in 1849, Wisconsin’s abortion statute was interpreted as a near-complete prohibition. It criminalized the act of anyone other than the expectant mother or a doctor in emergency medical situations from performing an abortion. Though the ban was inoperative following the U.S. Supreme Court’s Roe v. Wade decision in 1973, it was still on record. Proponents argued that the 2022 demise of Roe v. Wade reactivated the dormant ban.
In the case brought forward by Democratic Attorney General Josh Kaul, he asserted that the abortion restrictions implemented under the influence of Roe v. Wade were severe enough to render the old ban obsolete. He highlighted laws from 1985 which permitted abortions up until the fetus was viable, approximately 21 weeks, provided medically sustaining measures were available.
Additional legislative measures in the Roe era included mandates for ultrasounds, waiting periods, and regulations on how abortion-inducing medications are provided. Justice Rebecca Dallet, writing for the majority, indicated that such comprehensive legislation was unmistakably intended to replace the 19th-century ban.
The 1849 ban’s contemporary relevance was defended in judicial settings by Sheboygan County District Attorney Joel Urmanski, who reasoned that it could exist in harmony with newer restrictions. Yet, Dane County Circuit Judge Diane Schlipper previously ruled in 2023 that the historic law prohibited feticide, defined as the killing of a fetus lacking maternal consent, not consensual abortions. Abortion services have persisted in Wisconsin because of this ruling, but the Supreme Court’s verdict has now cemented their legality, offering further assurances to both providers and patients.
The state Supreme Court’s decision was arguably anticipated as liberal justices had already insinuated its imminence through their public statements. Justice Janet Protasiewicz, known for her pro-abortion stance, and Justice Jill Karofsky, who branded the century-old ban a “death warrant” for vulnerable women and children, made their positions clear both on the campaign trail and in court sessions.
According to voter sentiments from the 2024 election, a substantial 62% supported legal abortion in significant scenarios, per AP VoteCast data. Conversely, a minority of one-third thought it should be unlawful in most cases, and a scant 5% insisted on its prohibition in all cases.
Justice Annette Ziegler expressed staunch opposition, scorning the verdict as a power grab by liberal justices meant to pander to their Democratic audience. She criticized the court’s interference in legislative affairs to institute the majority justices’ personal biases.
While dissenting voices expectedly disapproved, reproducing activist Heather Weininger from Wisconsin Right to Life, contended that no law known effectively repealed the old ban, labeling the repeal as a judicial overreach.
Planned Parenthood of Wisconsin had previously pursued a constitutional assessment of the ban earlier in 2024. Still, the court dismissed the matter without an explanation. Despite the court’s decision providing stability for abortion services, Michelle Velasquez of Planned Parenthood expressed disappointment at the constitutional challenge’s dismissal and hinted at potential challenges against existing state abortion restrictions.
Attorney General Kaul opted not to challenge remaining legislative restrictions and instead urged the legislature to reassess abortion policies. The liberal majority is expected to hold on Wisconsin’s Supreme Court, as liberal-backed Susan Crawford won a seat, guaranteeing a 4-3 edge until at least 2028. Crawford’s victory ensures a sustained ideological balance despite not yet being inducted when the ruling passed.
As the court races look towards 2026, abortion rights remain a pivotal campaign issue. Former Planned Parenthood of Wisconsin policy director and state appellate judge Chris Taylor, who is vying for a Supreme Court seat against Justice Rebecca Bradley, is framing the ruling as a victory while criticizing Bradley’s dissent. Bradley, in her dissent, suggested that liberal justices see themselves as “super legislators,” protesting what she perceives as an affront to democratic governance.