Wisconsin Supreme Court Overturns 19th Century Abortion Ban

Wisconsin Supreme Court Overturns 19th Century Abortion Ban

In a closely divided decision, the Wisconsin Supreme Court has nullified a near-total abortion ban from the 1800s, citing newer legislation as a replacement. This pivotal ruling, determined by a 4-3 vote, represents a significant shift in the state’s legal landscape regarding abortion laws.

The case, Josh Kaul et al. v. Joel Urmanski, et al., revolved around the applicability of an 1849 statute that forbade the “intentional destruction of an unborn child.” With Justice Rebecca Frank Dallet leading the majority opinion, the court found that subsequent legislation had essentially rendered the old ban obsolete.

Justice Dallet articulated in her opinion that recent laws, including a 20-week abortion limit, compulsory ultrasounds, and a 24-hour waiting period, “impliedly repealed” the antiquated ban. She emphasized that these laws thoroughly governed abortion, indicating a legislative intent to supplant the 19th-century restrictions.

“Comprehensive legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion,” Dallet wrote.

In stark contrast, Justice Annette Kingsland Ziegler penned a dissenting view, accusing the majority of overstepping their judicial boundaries. She criticized the decision as a “jaw-dropping exercise of judicial will” that undermines the separation of powers by prioritizing personal preferences over established law.

Ziegler’s dissent argued that the court’s decision stemmed from political motivations tied to the justices’ electoral promises, rather than legal principles. “Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law,” she asserted.

The 1849 abortion ban was originally nullified by the U.S. Supreme Court’s Roe v. Wade decision in 1973, which recognized abortion as a constitutional right. However, the ban remained technically on the books and resurfaced as a point of contention after the reversal of Roe in 2022.

Following the overturning of Roe, Wisconsin Attorney General Josh Kaul, a Democrat, initiated legal action to prevent the old ban from being reinstated. This legal battle led to a temporary suspension of abortion services by providers in the state.

For more detailed information, read the full court opinion.