Wisconsin Justices Appear Hostile to 175-Year-Old Abortion Law
The dispute over whether the 1849 law bans nearly all abortions in the state is a sign of a “world gone mad,” one justice said.
The Wisconsin Supreme Court heard oral arguments last week over an 1849 law that state Republicans say bans abortion from contraception to birth, with only very narrow exceptions.
After the U.S. Supreme Court reversed Roe v. Wade in 2022, abortion providers in Wisconsin stopped providing services for fear of violating the 175-year-old law, which says that “any person, other than the mother, who intentionally destroys the life of the unborn child” is guilty of a felony and subject to 15 years imprisonment unless the life of the patient is at risk.
The state’s Democratic attorney general Josh Kaul filed a lawsuit arguing the law operates only as a feticide law — meaning, it forbids the killing of a fetus against the will of the pregnant person — and does not ban “consensual abortions.” As such, Kaul says, local prosecutors cannot pursue charges against abortion providers for procedures performed with the patient’s consent. Kaul also argues that even if the 1849 law was passed to ban abortions, it has been implicitly repealed by later regulations, including a measure criminalizing abortion at 20 weeks.
A trial court agreed with Kaul, relying on State v. Black, a 1994 ruling by the Wisconsin Supreme Court holding that a man could be prosecuted under the law for assaulting his wife and causing her to miscarry.
Joel Urmanski, the Republican district attorney for Sheboygan County, appealed the trial court’s ruling, arguing that the state’s law does in fact ban virtually all abortions. Urmanski also argues that Kaul lacks standing to sue because he faces no risk of prosecution under the law.
During the oral arguments in Kaul v. Urmanski, several progressive justices’ hostility to the 1849 law was on display. Matthew Thome, the attorney representing Urmanski, faced a barrage of questions about the harms produced by the law. Justice Jill Karofsky asked Thome whether upholding the 1849 case was tantamount to asking the court to “sign the death warrant” of women, girls, and pregnant people in the state. Justice Rebecca Frank Dallet asked him what the court should make of the fact that the statute was enacted at a time when only white, property-owning men had the right to vote. Karofsky described the effort to apply a 175-year-old law with almost no exceptions in the present day as a sign of a “world gone mad.”
Looming over the argument was another case that the state supreme court has agreed to hear, filed by Planned Parenthood, that argues that the state constitution protects a right to abortion. Indeed, the justices’ initial questions seemingly addressed the constitutionality of the statute — not the statutory interpretation and standing issues raised by the parties in Kaul. No date is set for oral arguments in the Planned Parenthood case.
The court eventually dug into the substantive questions at the heart of the Kaul case. The justices focused both on whether the 1849 law operated as an abortion ban and whether subsequent abortion regulations had implicitly repealed it. Thome insisted that the later 20-week ban and other regulations did not reflect the legislature’s intentions to undo the 1849 law but rather a desire to maximize limits on abortion “within the strictures of Roe v. Wade.” Some of the court’s more conservative justices, like Justice Brian Hagedorn, seemed sympathetic to that argument. Hagedorn described Roe as inventing a right with no constitutional basis and suggested that the court’s job was not to second guess policy judgments made by legislators.
Some discussion focused on the fate of Black, the 1994 feticide case. Justice Rebecca Bradley quizzed the assistant attorney general arguing on behalf of Kaul about whether the court would have to reverse Black to hold that the legislature had implicitly repealed the 1849 law. After all, Bradley pointed out, the ruling in Black assumed the law was operative. The assistant attorney general suggested Black bolstered Kaul’s position because the court had held that there would be no way to reconcile the 1849 law and later regulations unless the older law operated as a feticide measure rather than an abortion regulation.
Kaul’s lawyer also countered the argument that both the 20-week ban and the 1849 law could be simultaneously enforced, assuming the 175-year-old law did regulate abortion. Wisconsin courts only permit two statutes to stand when they address different purposes or have different scopes, she said, and in this case, both abortion laws would seemingly have had the same objective: setting the gestational limit for legal abortion.
Predicting the precise breakdown of votes in Kaul isn’t straightforward. Several of the justices, including Walsh Bradley and Justice Janet Protasiewicz, asked difficult questions of both sides. But the upshot, it seems, is that the court will rule against the 1849 law. Whether that ruling will come in Kaul or a later case remains to be seen.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.
Suggested Citation: Mary Ziegler, Wisconsin Justices Appear Hostile to 175-Year-Old Abortion Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 18, 2024), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-justices-appear-hostile-175-year-old-abortion-law
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