Add To Favorites
Wisconsin court says 19th-century abortion ban cannot be enforced
By Daniel Wiessner - 7/2/2025
By Daniel Wiessner
(Reuters) -Wisconsin's top state court ruled on Wednesday that an 1849 state law banning abortion in virtually all cases cannot be enforced, rejecting claims it had been revived after a landmark U.S. Supreme Court ruling three years ago returned the authority to regulate abortion to individual states.
The 4-3 decision by the Wisconsin Supreme Court, which affirms a lower court, leaves in place a 2015 state law that bans abortion after 20 weeks.
The majority agreed with Wisconsin's Democratic Attorney General, Josh Kaul, that while the 19th-century law has never been formally repealed, it was effectively nullified by more recent laws and regulations including the 20-week ban.
"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," Justice Rebecca Dallet wrote for the court.
The decision stemmed from a lawsuit Kaul filed in 2022, shortly after the U.S. Supreme Court overturned Roe v. Wade, which had recognized a constitutional right to abortion, against Joel Urmanski, the Republican District Attorney of Sheboygan County, Wisconsin, who had argued that the 1849 law was back in effect and could be enforced.
Kaul's office and Urmanski did not immediately respond to requests for comment.
The Wisconsin Supreme Court maintained its liberal majority after an April election in which the winning candidate, Susan Crawford, campaigned on her support for abortion rights.
The contest was the most expensive judicial election in U.S. history, widely seen as an early referendum on President Donald Trump. Billionaire Elon Musk, then a Trump adviser, and groups tied to him spent more than $20 million in an attempt to elect Crawford's conservative opponent.
Crawford will join the court next month, replacing Justice Ann Walsh Bradley, who was in the majority in Wednesday's decision.
The 1849 law makes it a felony to "intentionally destroy" a fetus except to save the mother's life, and violations are punishable by up to 15 years in prison. It was rendered unenforceable in 1973 when the U.S. Supreme Court decided Roe v. Wade, which recognized abortion rights nationwide.
The Supreme Court in a 6-3 ruling in 2022 overturned Roe, with the conservative majority saying the prior ruling was flawed and that abortion should be left for states to regulate within their borders.
Currently, 13 states have near-total abortion bans and 28 others prohibit abortions after certain points during pregnancy, according to the Guttmacher Institute, an abortion rights advocacy group.
Providers across Wisconsin stopped performing abortions in 2022 over concerns that they could be prosecuted under the 1849 state law. They resumed in 2023 after a state judge ruled in Kaul's favor and found the law unenforceable.
The Wisconsin Supreme Court on Wednesday upheld that ruling, saying that over the last 50 years the law had effectively been replaced by state lawmakers with a series of criminal laws and regulations governing healthcare providers and government funding of abortion services.
"If abortion is simply illegal except when it is necessary to save the life of the mother, then numerous statutes specifically authorize the state, counties, or municipalities to subsidize a crime," Dallet wrote.
In a dissenting opinion, Justice Annette Ziegler accused her colleagues of bending the law to arrive at their preferred result. She said that wiping out a law that was never repealed by the state legislature violated the court's constitutional role.
"The majority’s smoke-and-mirrors legalese is nothing more than 'painting a mule to resemble a zebra, and then going zebra hunting,'" Ziegler wrote.
(Reporting by Daniel Wiessner in Albany, New York, Editing by Alexia Garamfalvi, Sonali Paul, Peter Graff)