Wisconsin Supreme Court takes up challenge to 1849 abortion law

The Wisconsin Supreme Court on Monday will hear oral arguments in a high-profile case that could, at least partially, determine the future of abortion rights in the state.

The case was filed by Democratic Attorney General Josh Kaul and Gov. Tony Evers in the days after the U.S. Supreme Court overturned Roe vs. Wade in 2022. It challenges the state’s 1849 abortion ban, which was believed for almost 18 months to ban most abortions in Wisconsin. 

The case is perhaps the most high-profile litigation to reach the state Supreme Court since a redistricting case that resulted in the court’s now-liberal majority throwing out Republican-gerrymandered legislative districts. New districts implemented after that decision resulted last week in 10 additional Assembly seats and four additional state Senate seats for Democrats, though Republicans maintain majorities in both houses.

The arguments will focus on two issues: First, whether the 1849 law applies to consensual abortions. Second, whether the 1849 ban was “impliedly repealed” when the Legislature passed additional laws — while Roe was in effect — regulating abortion after fetal viability. 

A Dane County judge ruled in late 2023 that the 1849 statute applied to feticide, not consensual abortions. That decision was appealed, resulting in Monday’s high court hearing.

Attorneys for Sheboygan County District Attorney Joel Urmanski, who is one of the prosecutors named in the case and has said he would prosecute violations of the 1849 law, argued in briefs submitted to the court that Dane County Circuit Court Judge Diane Schlipper’s interpretation of the law was incorrect.

They argued the “plain meaning (of the law) prohibits consensual abortion.” The statute, in part, provides: “Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.”

Accordingly, attorneys for Urmanski argued, the law should apply to consensual abortions for three reasons.

• “First, a doctor who performs an abortion is a person other than the mother of an unborn child,” they wrote.
• “Second, ‘unborn child’ is defined in (the statute) as ‘a human being from the time of conception until it is born alive.’”
• “Finally, a consensual abortion involves the intentional destruction of the life of the unborn child,” Urmanski’s lawyers continued.

“There really should be no dispute that a consensual abortion falls within the scope of the prohibition of (the 1849 ban),” they argued.

Lawyers for Urmanski also argued that the 1849 law was not repealed because it does not conflict with more recent abortion statutes and those laws did not “clearly indicate a legislative intent to repeal (the 1849 law).”

Attorneys for the state Department of Justice — and the district court’s ruling — relied heavily on a 1994 Wisconsin Supreme Court decision. In that case, a man was charged under a portion of the 1849 law “for destroying the life of his unborn quick child by violently assaulting his wife five days prior to her anticipated delivery date.” The man argued the statute applied to abortion, not feticide, but the state Supreme Court disagreed.

In that case, the court concluded that at least portions of the 19th-century law “is not an abortion statute. It makes no mention of an abortive type procedure. Rather, it proscribes the intentional criminal act of feticide: the intentional destruction of an unborn quick child presumably without the consent of the mother.”

“It is a feticide statute only,” the court wrote.

The precedent established in the 1994 case means the 1849 law cannot be applied to consensual abortions, attorneys for the state argued.

On the issue of whether the ban was “impliedly repealed,” the state points to two other cases, both from 1971. A “later-enacted law impliedly repeals an earlier law where an ‘irreconcilable’ conflict exists between the two laws — where the later-enacted statute ‘contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force,’” attorneys from DOJ argued, citing one of the two cases.

Additionally, a law is implied repealed “by the enactment of subsequent comprehensive legislation establishing elaborate inclusions and exclusions of the persons, things and relationships ordinarily associated with the subject,” the attorneys wrote, citing the second case.

Monday’s arguments mark the first of two high-profile abortion cases the court will hear this term. The second, filed by Planned Parenthood of Wisconsin, asks the court to declare that abortion access is a right protected by the state constitution.

The court has not scheduled oral arguments in the second case.

Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.