MADISON, Wis (CIVIC MEDIA) – Wisconsin’s top court says a state statute from 175 years ago does not ban modern, consensual abortion. It issued its decision on Wednesday morning shortly after 8 a.m.

At issue is a statute written in 1849, written before women had the right to vote. It was heavily revised to be more restrictive in 1858. The language criminalizes abortion providers and others who “destroy the life of an unborn child.” It also criminalizes people seeking abortions.

The prohibition has remained on the books in Wisconsin, but was superseded for decades by federal abortion protections enshrined by Roe v Wade. When the U.S. Supreme Court upended those protections in Dobbs v. Jackson Women’s Health in 2022, the statute came back into play.

Wisconsin, however, has passed more regulations on abortion since Roe. The lawsuit, filed by state Attorney General Josh Kaul and abortion providers in the days following the Dobbs decision, contends that newer laws directly conflict with and override the 1849 law.

That’s a distinction the court’s liberal majority found convincing.

“The legislature impliedly repealed § 940.04(1) as to abortion by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions,” wrote Justice Rebecca Dallet in a 17-page majority opinion.

“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion.”

The ruling was 4–3, with all four liberal justices in the majority and all three conservatives dissenting. The majority’s decision effectively upholds legal abortion access in Wisconsin.

Chief Justice Jill Karofsky concurred separately, writing that the legal uncertainty had left doctors in limbo and put survivors of sexual assault at risk.

“Severe abortion restrictions operate like death warrants,” Karofsky wrote, recounting stories of women who died after being denied abortion care in other states.

The conservative justices issued sharp dissents accusing the majority of erasing a law it didn’t like.

“This is pure policymaking… Today, the court aggrandizes power to itself, rewrites the law in its own image, and undermines our constitutional order,” wrote Justice Brian Hagedorn.

“With no apparent sense of irony, the concurrence claims abortion restrictions amount to “death warrants” for women, ignoring the people who feel just as passionately that abortion kills innocent human lives—more than 1,000,000 in each of the last two years,”wrote Justice Rebecca Bradley.

Sheboygan County District Attorney Joel Urmanski, the defendant in the case, had sought to enforce the 1849 law in his county. After a lower court ruled against him last year, he said, “While it may be that the citizens of Wisconsin would be better served by a different statute, I do not believe it is my job or the role of the courts to make that determination.”

The court heard oral arguments last November. This ruling comes at the close of the court’s annual term.

Governor Tony Evers praised the decision in a statement.

“Thanks to our lawsuit, today’s decision affirms that access to reproductive healthcare will continue to be available… helping ensure Wisconsin women today are not forced to face what it’s like to live in a state that bans nearly all abortions—even in cases of rape and incest.”

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BREAKING: Abortion legal under Wisconsin Supreme Court decision

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