Wisconsin Supreme Court to Consider Whether 175-Year-Old Law Bans Abortion

Madison, Wis. — The Wisconsin Supreme Court decided Tuesday to consider two challenges to a 175-year-old law that conservatives maintain bans abortion without letting the cases wind through lower courts.

Abortion advocates stand an excellent chance of prevailing in both cases given the high court's liberal tilt and remarks a liberal justice made on the campaign trail about how she supports abortion rights.

Wisconsin lawmakers enacted statutes in 1849 that had been widely interpreted as outlawing abortion in all cases except to save the mother's life. The U.S. Supreme Court's landmark 1973 Roe v. Wade ruling legalizing abortion nullified the statutes, but legislators never repealed them. The high court's 2022 decision to overturn Roe v. Wade reactivated them.

Democratic Attorney General Josh Kaul filed a lawsuit challenging the statutes in 2022, arguing they were too old to enforce and a 1985 law that permits abortions before a fetus can survive outside the womb supersedes them. A Dane County judge ruled last year that the statutes outlaw attacking a woman in an attempt to kill her unborn baby but doesn't ban abortions. The decision emboldened Planned Parenthood to resume offering abortions in Wisconsin after halting procedures when the U.S. Supreme Court overturned Roe v. Wade.

Sheboygan County District Attorney Joel Urmanski, a Republican, asked the state Supreme Court in February to overturn the ruling without letting an appeal move through the state's lower appellate courts. He argued the ruling will have a statewide impact and guide lawmakers and the case will ultimately end at the Supreme Court anyway.

Days after Urmanski filed his request, Planned Parenthood of Wisconsin sued Urmanski and asked the Supreme Court to take it directly. The organization is seeking a ruling that the 1849 statutes are unconstitutional, arguing that the state constitution's declaration that people have a right to life, liberty and the pursuit of happiness means women have a right to control their own bodies — essentially asking the court to declare a constitutional right to abortion.

The court released orders indicating the justices voted unanimously to take Urmanski's appeal and voted 4-3 to take the Planned Parenthood case. The court's four liberal justices voted to take that case, and the three conservative justices voted against taking it.

Urmanski’s attorneys, Andrew Phillips and Matthew Thome, didn’t immediately respond to an email seeking comment.

Persuading the court's liberal majority to uphold the statutes looks next to impossible. Liberal Justice Janet Protasiewicz even went so far as stating openly during her campaign that she supports abortion rights, a major departure for a judicial candidate. Typically such candidates refrain from speaking about their personal views out of concerns they could appear biased on the bench.

The conservative justices accused the liberal majority in their Planned Parenthood dissents of playing Politics.

“The signal to a watching public is that, when certain policy issues touch the right nerve, this court will follow the party line, not the law,” Hagedorn wrote.

Liberal Justice Jill Karofsky countered in a concurrence that the state Supreme Court is supposed to decide important state constitutional questions.

“Regardless of one's views on the morality, legality, or constitutionality of abortion, it is undeniable that abortion regulation is an issue with immense personal and practical significance to many Wisconsinites,” Karofsky wrote.

Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said in a statement that the organization was grateful the court agreed to take its case and Wisconsin residents need to know whether abortion is legal in the state.

Wisconsin Watch, a media outlet, obtained a leaked draft of the order accepting the case last week, prompting Chief Justice Annette Ziegler to call for an investigation.

Anti-abortion groups decried the Supreme Court's decision to take the Planned Parenthood case.

“Every Wisconsinite should be troubled by this blatant weaponization of the court system to enshrine death on demand,” Heather Weininger, executive director of Wisconsin Right to Life, said in a statement.