In heated oral arguments Monday morning, the Wisconsin Supreme Court appeared poised to rule that an 1849 law banning most abortions is unenforceable.
The legal status of abortion in Wisconsin has been challenged since the U.S. Supreme Court struck down Roe v. Wade and ended abortion rights nationwide, sparking a nationwide ban. That includes Wisconsin, where the 175-year-old ban went into effect immediately.
Wisconsin Democrats have made abortion a campaign issue, and Justice Janet Protasiewicz has voiced support for abortion rights and won a seat on the court in spring 2023. Judge Protasiewicz's election to the court helped tip the ideological balance on the court. It is ruled by a small liberal majority.
It is highly unlikely that a liberal-led court would uphold the ban.
An 1849 law invalidated by Roe v. Wade and then reinstated by a landmark ruling overturning the law prohibits ending the “life of an unborn child” unless necessary to save the mother's life. declared to be a serious crime. In July 2023, a county judge in Denmark dominated The 1849 ban cited previous rulings that interpreted contraceptives as anti-contraceptive, saying it applied only to contraceptives and not “consensual” abortions, and in September banned medical providers including family planning. has resumed providing abortion care.
Sheboygan County District Attorney Joel Urmansky appealed the decision, which is currently being heard by the Wisconsin Supreme Court.
Matthew Thome, an attorney representing Urmanski, said in opening arguments that “the circuit court's position below…is ultimately indefensible.” Thome argued that the 1849 law should be interpreted to “prohibit consensual abortion from conception to birth, with the exception of cases where it is necessary to save the life of the mother.”
Judge Jill Karofsky questioned Mr. Urmansky's interpretation of the law, asking whether there would be exceptions for rape, incest, the mother's health, and fetal abnormalities.
“Just to be clear, does a 12-year-old girl who is sexually assaulted by her father and becomes pregnant as a result, in your interpretation… have to carry the pregnancy to term?” Karofsky asked. . She said, “The penalties for abortion after sexual assault will be greater than the penalties for sexual assault.”
Asked about the medical implications of the ban, Thome said he wasn't sure because he was “not a doctor.”
“I fear that what you are asking this court to do is sign the death warrant for the women, children, and pregnant people of this state, because in your interpretation, all of them are denied life-saving medical care. “Meanwhile, those who were responsible for caring for them are forced to sit idle,” Karofsky said.
The court considered the question of whether laws passed while Roe effectively regulated abortion “implicitly repealed” the 1849 ban and made abortion unenforceable.
“All those statues passed by after 1973 before being toppled. Are they just going to go to the garbage heap?” Karofsky asked.
Conservative Justice Brian Hagedorn argued that “the law still exists'' regarding the 1849 Prohibition, adding: “The judiciary does not have the power to edit the law, the judiciary does not have the power to rewrite the law. We didn't delete it, we blocked its execution.”
Assistant Attorney General Hannah Jaas disagreed, saying, “There is nothing in the text of these statutes that says that if Roe were overturned, it would somehow revert to the old law and throw out all new law.'' ” and made a distinction. The law falls between Wisconsin's more than 100-year-old law and “trigger” laws passed in certain states that are specifically designed to go into effect after Roe v. Wade is overturned.
Another case, which the Wisconsin Supreme Court also agreed to hear, will determine whether the right to abortion is protected by the state's constitution, challenging other laws regulating abortion in the state. There is a possibility that the path to chanting will be opened.
