IT’S OFFICIAL: 1849 abortion ban overturned by judge

An appeal is likely, but abortion care services have already resumed in Wisconsin.

A Dane County judge on Tuesday made a final ruling that an 1849 law is not an abortion ban—a decision similar to her preliminary finding in July, which set the stage for abortion care to resume in Wisconsin.

Judge Diane Schlipper determined that the arcane legal language in the Wis. Stat. § 940.04, written only a year after Wisconsin became a state, applies to feticide—when someone injures a woman with intent to end her pregnancy—and not to a consensual process sought by a pregnant woman.

As a result, Wisconsin law reverts to a 1985 statute that protects abortion rights prior to the viability of a fetus—generally considered to be around 24 weeks—and post-viability abortions “if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.”

When conservative justices on the US Supreme Court last year repealed abortion care protections in Roe v. Wade, the legality of abortion became a state-by-state matter. But there were questions about whether Wisconsin reverted to the 1985 law—based largely on the protections in Roe—or the 1849 statute, which many interpreted as a near-total ban. Wisconsin Attorney General Josh Kaul filed a lawsuit, along with three physicians and others, seeking clarity on which law now applies.

Schlipper declined to issue a permanent injunction that would bar prosecutors from trying to enforce the 1849 law as a ban, she said, because the three district attorneys named in the lawsuit—in Milwaukee, Dane, and Sheboygan counties—promised to abide by her ruling.

“Today’s ruling is another important step forward in restoring and expanding access to abortion in Wisconsin,” said Michelle Velasquez, Planned Parenthood of Wisconsin Chief Strategy Officer. “We are grateful to Attorney General Kaul and Governor Evers for their leadership and efforts to protect reproductive freedom in Wisconsin.”

Planned Parenthood resumed abortion services in July at its Madison and Milwaukee clinics. Services remained suspended in Sheboygan, where Sheboygan County District Attorney Joel Urmanski had sought to have the Kaul lawsuit dismissed. It was Schlipper’s rejection of that request in July that gave the first indication of how she would rule Tuesday.

An appeal is likely, and the case could eventually go to the state Supreme Court. Support for women’s abortion rights played a role in the April victory by progressive Justice Janet Protasiewicz that ended 15 years of conservative dominance of the court.