Wisconsin Supreme Court Election Spells a Win for Abortion Rights

This month’s race for an open seat on the Wisconsin Supreme Court is now officially the most expensive judicial election in history, with total spending topping $100 million. The election attracted the attention of donors from across the political spectrum, including the ACLU Voter Education Fund, George Soros, and Americans for Prosperity. Groups affiliated with Elon Musk, the billionaire ally of President Donald Trump, funneled $21 million into the campaign of Brad Schimel, the conservative former attorney general.

Yet his opponent, trial judge Susan Crawford, who was endorsed by the state Democratic Party, won the race by roughly 10 percentage points, maintaining a 4–3 liberal majority on the court.

The race attracted so much attention partly because the court is set to decide two major abortion cases this year. Abortion thus played a central role in the campaign, with Crawford stressing her experience representing Planned Parenthood of Wisconsin and accusing Schimel of not trusting women to make their own health care decisions. Schimel, who maintains that he is against abortion, argued that the issue should be left to voters.

A Constitutional Abortion Right

One of the two key abortion cases facing the court this year hinges on whether the Wisconsin Constitution recognizes a right to abortion. Last year, the Wisconsin Supreme Court agreed to hear a case about an 1849 law that state Republicans interpret to ban virtually all abortions from the moment of fertilization. The law provides that “any person, other than the mother, who intentionally destroys the life of the unborn child” can be convicted of a felony unless the procedure was necessary to save the life of the pregnant person.

In the case, Planned Parenthood v. Urmanski, Planned Parenthood is asking the court to rule — without waiting on a decision from the lower courts — that interpreting the 1849 law as a ban on abortion would violate the state constitution. “The right to life and liberty, including the right to make one’s own decisions about whether or not to give birth and medical decisions related to pregnancy or abortion care from a chosen health care provider,” the organization asserts, “is fundamental.” Planned Parenthood also argues that if it operated as a ban, the 1849 law would violate the constitutional rights of doctors to practice their chosen profession.

Joel Urmanski, the Republican district attorney for Sheboygan County named as a respondent in the case, has said in briefing that the Wisconsin Supreme Court generally interprets the state constitution in the same way that the U.S. Supreme Court interprets equivalent provisions of the federal Constitution. Because the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overturned the federal constitutional right to abortion, Urmanski argues that the Wisconsin Constitution similarly lacks abortion protections.

Even if the Wisconsin high court didn’t follow Dobbs, Urmanski argues that the outcome should be the same. He urges the court to discern the “original meaning” of the state constitution and insists that at the time of the state constitution’s ratification, no one thought there was a right to abortion.

Planned Parenthood, by contrast, spotlights decisions from other states recognizing a right to abortion after Dobbs. It further argues that Wisconsin’s tradition regarding abortion is far richer than Urmanski suggests, maintaining that abortion was common and at least somewhat accepted when the state constitution was written.

The parties are also clashing over what bearing the state constitution’s provisions on equal protection have on abortion rights. Planned Parenthood argues that the 1849 law would violate state protections against sex discrimination, while Urmanski stresses that Dobbs rejected an equal protection argument for abortion rights and invites the Wisconsin Supreme Court to do the same.

A Feticide Law?

Ultimately, the Wisconsin Supreme Court may not have to address whether the state constitution protects an abortion right, depending on the outcome of Kaul v. Urmanski, a case argued before the court in November.

Josh Kaul, the state’s Democratic attorney general, concluded that the 1849 law was a feticide law — punishing only those who terminated a pregnancy against a pregnant person’s wishes — not an abortion ban. Fetal homicide statutes aren’t unusual; 38 states currently have some version of such a law. Convinced that the 1849 law fit in the same category, Kaul filed suit to establish that Wisconsin providers can’t be prosecuted for abortions performed with the patient’s consent. Even if the 1849 law did ban abortions, Kaul argued, later Wisconsin restrictions implicitly overrode it, particularly a 2015 law banning abortion at 20 weeks. In 2023, a trial court agreed with Kaul, and Urmanski appealed the decision.

Kaul will turn on what the high court makes of the 1849 law — particularly, how to make sense of it in light of its 1994 ruling in State v. Black. In that case, Glenndale Black violently assaulted his pregnant partner days before her due date and caused her to miscarry. Black was prosecuted under the 1849 law but argued that the law criminalized only “consensual medical abortions,” not feticide. He also claimed that steps taken by the state legislature to comply with Roe v. Wade had implicitly repealed the 1849 law. The court in Black rejected both those arguments, reasoning that the law clearly prohibited feticide and that the court generally didn’t interpret a later statute to repeal an earlier one. Moreover, the court reasoned that it was important to interpret state statutes to effectuate all their goals, when possible. That meant interpreting the 1849 law to prohibit feticide, which would not contradict the intent of later legislation to protect abortion access.

Black will play a central role in the disposition of Kaul. On the one hand, as Urmanski argues, the court has previously rejected the claim that a later law, like the 20-week ban from 2015, implicitly repeals an earlier one. On the other hand, as the assistant attorney general representing Kaul explained during the oral arguments, the court already interpreted the statute as a feticide law in Black. Kaul’s lawyer also argued that there was no way for both laws to stand if the 1849 law was an abortion ban because Wisconsin courts only permit two statutes on the same subject to stand when they address different purposes or have different scopes. If the 1849 law is an abortion ban, then both laws would have the same objective: setting the gestational limit for legal abortion.

At oral argument, the court seemed divided about how to resolve Kaul. But the justices were clearly skeptical of the constitutionality of a ban on abortion at fertilization. It seems probable that one way or another, the court’s four-justice majority will rule in a way that permits legal abortion in Wisconsin. That result seems even likelier in the wake of the recent election solidifying the liberal majority.

The Court’s Reasoning Matters

But how the court reaches this result will matter too. It’s possible that the court will embrace some of Planned Parenthood’s broader constitutional arguments. If the court recognizes the right of physicians to perform abortions, for example, that would make it easier to challenge any new abortion ban in court. Importantly, other state supreme courts are rethinking whether doctors should have standing to sue on their patients’ behalf.

And if the court offers an especially convincing rationale for abortion rights — perhaps one rooted in equality — that might make it harder to undermine or even overturn such a ruling in the future.

Of course, the court could reach a much narrower decision: It might rule that the 1849 law simply isn’t an abortion ban. Such an outcome would obviate the need for the court to consider whether a ban violates the state constitution.

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Whatever happens will not just ensure that abortion remains accessible in Wisconsin. After the demise of federal constitutional abortion rights, state supreme courts have moved to the center of struggles over what their constitutions have to say about abortion. For that reason, we should expect the Wisconsin Supreme Court’s rulings to shape the terms of debate in other states.

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, comes out this week. 

Suggested Citation: Mary Ziegler, Wisconsin Supreme Court Election Spells a Win for Abortion Rights,  Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 22, 2025), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-supreme-court-election-spells-win-abortion-rights