Legal Question: If Roe Is Overturned, Can Wisconsin’s 1849 Abortion Ban Be Ruled Unenforceable?

A political battle would almost certainly spill into courts as health providers assess their legal options.

A US Supreme Court ruling overturning Roe v. Wade would leave regulating abortion up to the states—and potentially create a legal morass in Wisconsin. The state has had a law banning abortion on its books since 1849, and it has long been presumed that Roe’s fall would mean the end of legal abortion in Wisconsin.

But some liberals, including Democratic Attorney General Josh Kaul, are arguing that the statute is so old that it’s unenforceable. That could lead to a complicated court battle to clarify the ban’s breadth and status.

Here’s a look at what a decision overturning Roe could mean for the state:

WHAT DOES WISCONSIN LAW SAY ABOUT ABORTIONS?

Wisconsin passed a law in 1849 making an abortion a felony offense. The law isn’t absolute, however. The language allows a woman to legally destroy her own fetus or embryo and grants immunity if an abortion is needed to save a woman’s life and is performed at a hospital.

A 1985 law prohibits abortions performed after a fetus reaches viability, which is the point at which a child could viably survive outside of the womb. The law pre-dated a 1992 US Supreme Court ruling that affirmed Roe v. Wade and established that women have a right to an abortion prior to viability, generally considered to be the 24th week of pregnancy. The 1985 law also includes an exception to save a woman’s life, but it appears to conflict with the 1849 ban since it allows abortions before the point of viability.

WOULD THOSE LAWS COME INTO PLAY IF ROE V. WADE IS OVERTURNED?

Maybe. A series of political and legal battles would probably come first.

WHAT WOULD THE BATTLE LINES LOOK LIKE IN THE STATEHOUSE?

Republicans would likely would push new legislation tightening up the laws.

“I think there are some things that we can do to refine that law and improve that law,” said Julaine Appling, executive director of the anti-abortion group the Wisconsin Family Council. “And I would hope as soon as we start this new legislative session, that we will take a close look at doing just that.”

That puts the onus on the 2022 elections. Republicans already control the Legislature, and if they win veto-proof majorities or capture the governor’s office, they would have a clear path to rewrite the laws to their liking. If Democratic Gov. Tony Evers wins a second term and Republicans can’t achieve veto-proof majorities, nothing would happen to the laws.

WHAT ABOUT IN COURT?

That’s where things could get messy. If Republicans can’t impose a blanket ban through legislation, legal observers expect the GOP or its allies to file a lawsuit asking the conservative-controlled state Supreme Court to interpret the ban’s limits.

Democrats likely would mount a counter argument that the ban is unenforceable because it’s been dormant for so long. A legal theory known as the desuetude doctrine allows statutes that haven’t been enforced over a period of time to lapse.

Democratic Attorney General Josh Kaul has cited that doctrine as a way to challenge the ban, which is now more than 170 years old and hasn’t been enforced in almost 50 years. Kaul stopped short of saying whether the Department of Justice would challenge the ban, saying agency attorneys are examining all options. Still, he predicted “very significant litigation.”

“This is a hugely important issue,” University of Wisconsin-Madison law professor David Schwartz said. “I would expect a preemptive lawsuit seeking a declaration clarifying the ban is still valid and enforceable. I think it will be a big mess.”

Appling said legal experts her group consulted believe the 1849 ban will be enforceable as it’s currently written, but that she expects a legal challenge.

Mike Murray, a spokesman for Planned Parenthood of Wisconsin, declined to comment about his group’s legal strategies. If nothing is done, emergency room doctors faced with a pregnant woman in distress would have to call their hospitals’ attorneys to see if they can legally perform an abortion, he said.

“You’re going to have attorneys probably playing a pretty significant role in whether or not incredibly sick pregnant women can get the health care they need in Wisconsin,” Murray said. “We certainly do not think the abortion ban should spring back to life.”

The fight also could begin when the first county prosecutor learns of an abortion within his or her jurisdiction and must decide whether to bring charges, Schwartz said. Kaul already has said he won’t allow the state Justice Department to investigate or help local prosecutors with abortion cases.

The state’s only abortion clinics are in liberal-dominated Madison and Milwaukee. Milwaukee County District Attorney John Chisholm told the Milwaukee Journal Sentinel that it would be a mistake for police and prosecutors to insert themselves between a woman and her doctor, but he declined to say whether he would enforce the ban. Dane County District Attorney Ismael Ozanne didn’t immediately respond to an email asking if he would enforce the ban.

WHERE DOES THE STATE SUPREME COURT STAND?

Conservatives control the court 4-3. One of them, Justice Rebecca Bradley, wrote a piece for her college newspaper in 1992 comparing abortion to the Holocaust. In blog posts in 2005 and 2006, before he joined the court, Justice Brian Hagedorn, a conservative who has sometimes sided with the court’s liberal bloc, called Planned Parenthood a “wicked organization” more devoted to killing babies than helping women.

No one can force a justice to recuse himself or herself from case. That’s up to the justices themselves. A decision upholding the ban could affect majority control of the court next year though. Eighty-two-year-old conservative Justice Patience Roggensack isn’t seeking reelection next April, and a ruling upholding or expanding the abortion ban could energize Democrats to elect a liberal justice.