The Wisconsin Supreme Court issued a ruling on Wednesday declaring that a 19th-century abortion law is no longer enforceable, finding it to be in conflict with more recent state laws regulating abortion. The decision, passed by a 4-3 majority led by liberal justices, upholds a lower court's judgment that the old statute is unconstitutional. As a result, elective abortion remains legal in Wisconsin up to the 20th week of pregnancy.
In the background of the case, after the U.S. Supreme Court overturned the constitutional right to abortion in 2022 (Dobbs v. Jackson, reversing Roe v. Wade), abortion providers in Wisconsin halted elective procedures out of fear they could be prosecuted under the old law. However, in 2023, a judge in Dane County ruled that the 19th-century statute did not prohibit abortion with the pregnant person’s consent. Instead, it criminalized "fetal homicide by violence," not voluntary abortion. Following this interpretation, providers like Planned Parenthood resumed offering abortion services.
The Wisconsin Supreme Court concluded that the series of modern laws specifying how, when, and by whom abortions can be performed amount to an "implicit repeal" of the earlier law. Justice Rebecca Dallet wrote that these updated laws effectively replaced the older one, which nearly banned abortion entirely.
The ruling sparked significant political reactions. Democrats, including Governor Tony Evers and Attorney General Josh Kaul, welcomed the decision as a victory for reproductive freedom. Republicans, on the other hand, criticized the ruling, claiming the court had overstepped its constitutional role and engaged in political interference with legislative powers. The state’s Republican Party argued that the court's majority had acted beyond its legal authority.
This decision also carries substantial electoral implications. Abortion was a central issue in the 2023 state Supreme Court election, which gave liberal justices a majority when Janet Protasiewicz won her seat with strong support from Democrats. That majority will continue with the anticipated addition of Justice Susan Crawford in August 2025.
Despite the court's ruling, several abortion restrictions remain in place, such as a mandatory 24-hour waiting period and a requirement for ultrasound scans before the procedure. Planned Parenthood expressed disappointment that the court declined to hear its constitutional challenge seeking recognition of abortion rights under the state’s concept of "bodily autonomy." Nonetheless, the organization affirmed its intent to continue challenging other restrictive laws in the future.
This ruling marks a major legal shift in Wisconsin, reaffirming the legality of elective abortion and reflecting the impact of recent changes in the court’s political composition. It also underscores that abortion will remain a pivotal issue in upcoming state and national elections.