Wisconsin Supreme Court Rules 176-Year-Old Law Does Not Ban Abortion  

In a closely watched reproductive rights case, the Wisconsin Supreme Court ruled Wednesday that an 1849 state law had been impliedly repealed as to abortion and does not ban the procedure. The case may be just the opening act in the heated conflict over reproductive rights in one of the nation’s perennial swing states.

The dispute began in 2022 after the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that there was no constitutional right to abortion. In Wisconsin, abortion providers stopped offering services because of the 176-year-old law, which made it a felony for “any person, other than the mother” to “intentionally destroy[] the life of the unborn child.”

State Republicans interpreted the law as an absolute abortion ban. The state’s Democratic attorney general, Josh Kaul, filed a lawsuit arguing that Wisconsin had impliedly repealed the 1849 law by passing subsequent abortion regulations, including one prohibiting the procedure at 20 weeks after a patient’s last menstrual period. Kaul alternatively asserted that the law applied only to feticide — or the termination of a pregnancy against the will of the pregnant person — and did not make abortion illegal if a woman consented to the procedure. Kaul won in the trial court and Joel Urmanski, the district attorney for Sheboygan County, appealed, insisting that the 1849 law did operate as an abortion ban. Urmanski also questioned Kaul’s standing to sue, given that the attorney general himself would not be prosecuted under the 1849 law.

In its 4–3 opinion in Kaul v. Urmanski, the Wisconsin Supreme Court agreed with the attorney general that the law was obsolete. The court began by observing that before Roe v. Wade in 1973, prosecutors had used the 1849 law against abortion providers — supporting a conclusion that the law originally had applied to abortions, not just to feticide. The court nevertheless held that subsequent abortion regulations had so comprehensively covered the topic of abortion as to replace the 1849 law. The majority surveyed a variety of Wisconsin abortion laws passed after 1849, beginning with a 1985 law that made abortion a crime only after the point of fetal viability. In 1997, the legislature passed a law criminalizing a particular procedure, dilation and extraction, that abortion foes attempted to stigmatize by labeling partial-birth abortion. And in 2015, the state prohibited most abortions after 20 weeks.

All of this, the court noted, was in addition to a vast array of restrictions governing the “who, what, and where” of abortion, including parental involvement laws, waiting periods, mandatory ultrasounds, hospital admitting privilege requirements, and limits on insurance reimbursement for abortion. The court reasoned that together, these laws so comprehensively addressed the topic of abortion that they must have been intended to replace previous, conflicting laws on the subject.

Indeed, Justice Rebecca Dallet wrote, many of the state’s subsequent restrictions would be incoherent if the 1849 law were still in force. If abortion was criminal except to save the patient’s life, Dallet asked, why would the state need to address parental consent to a crime, or the circumstances in which patients could be reimbursed by insurance for a criminal procedure?

In a concurring opinion, Chief Justice Jill Karofsky detailed the results that would follow if Urmanski’s interpretation of the law carried the day: Women forced to carry pregnancies to term in cases of fatal fetal abnormality, laws criminalizing abortion when a child was sexually assaulted by her father, patients forced to wait until the brink of death before receiving medical care. “This,” wrote Karofsky, “is the world gone mad.”

Karofsky offered a history of abortion very different than the one detailed by the U.S. Supreme Court in Dobbs, focusing on the movement to criminalize abortion early in pregnancy spearheaded by the American Medical Association, a movement motivated, the chief justice argued, by nativism, sexism, and paternalism. Karofsky closed by telling the stories of women’s whose deaths followed abortion bans, including Amber Thurman and Candi Miller in Georgia and Josseli Barnica in Texas. Most powerfully, the chief justice told the story of her own great grandmother, a mother of three who died in 1929 following complications from a self-induced abortion.

The three dissenting justices blasted the majority for what Justice Annette Ziegler called a “jaw-dropping exercise of judicial will.” In a dissent joined by Justice Rebecca Bradley, Justice Brian Hagedorn took issue with the majority’s theory of implied repeal, which he argued applied only when the state had introduced a brand-new statutory scheme. Nothing similar was present in this case, he reasoned, and the majority’s reliance on a series of discrete statutes was both novel and unconvincing.

Ziegler agreed that the court could deem a statute to be impliedly repealed only if that was the only reasonable interpretation of subsequent enactments. The majority, she wrote, failed to attempt this task and engaged instead in what she called an act of legislation. In a separate dissent, Bradley echoed Ziegler’s accusation of judicial legislation.

She also condemned Karofsky’s historical narrative, which she described as reliant on discredited sources. The truth, she argued, could be found in the works of Joseph Dellapenna, a law professor heavily cited in Dobbs who had worked with the pro-life movement, and James Wilson, a founding-era jurist who argued that “human life, from its commencement to its close, [was] protected by the common law.” Extensively quoting anti-abortion organizations, Bradley blamed the deaths of Thurman, Miller, and Barnica on “fear-mongering pro-abortion propagandists” who convinced women that it was unsafe to seek emergency medical care.

The ruling in Kaul allowed the state supreme court to avoid for now the question of whether the state constitution requires access to abortion under some circumstances. Planned Parenthood of Wisconsin last year filed a separate lawsuit challenging the constitutionality of the 1849 law on a number of grounds. Having held that the 1849 law was repealed, the court dismissed Planned Parenthood’s case.

The ruling in Kaul may only postpone constitutional conflicts over abortion in Wisconsin. The state still has abortion restrictions on the books that Planned Parenthood could challenge. Justice Susan Crawford, who expressed some sympathy for abortion rights on the campaign trail, won a race for the seat vacated by Justice Ann Walsh Bradley in April, shoring up the court’s 4–3 liberal majority. While Kaul was a significant victory for the abortion-rights movement, it may be the beginning of a broader fight. 

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. Her new book, Personhood: The New Civil War over Reproduction, is now available.