Wisconsin Supreme Court Repeals 1849 Abortion Ban in Major Victory

The Wisconsin state Supreme Court relegated a 176-year-old abortion ban to the ash heap of history on Wednesday, as the court’s liberal majority ruled that the ban was superseded by state laws that have been passed since.

The ban went into effect after the U.S. Supreme Court overturned Roe v. Wade in 2022, halting abortion providers’ operations in the state. Then in 2023, a Dane County judge invalidated the ban, allowing clinics to resume operations. Also that year, Wisconsin voters resoundingly elected pro-choice Judge Janet Protasiewicz to the state Supreme Court, tipping its majority from conservative to liberal. Liberals on the court hung onto their majority after Judge Susan Crawford defeated an Elon Musk–backed candidate in April this year.

The state Supreme Court’s Wednesday ruling, issued 4–3 along ideological lines, affirms the lower court’s ruling. In doing away with the ban, the decision leaves in place a law allowing abortions until about the twentieth week of pregnancy.

In the majority opinion, Justice Rebecca Dallet noted that the state Supreme Court had applied the ancient ban in a 1968 ruling. “But that was over 50 years ago,” the opinion states. “In the decades since, the legislature has enacted a myriad of statutes governing abortion.”

Namely, laws adopted in 1985, 1997, and 2015 narrowed the ban, as did “many additional statutes” enacted since then. These laws “specify, often in extraordinary detail, the answer to nearly every conceivable question about abortion.” Yet with the near-total ban in effect, they “would serve no purpose.”

Further, if the ban were in effect, that would nonsensically mean that existing state statues that allow the state, counties, and municipalities to fund abortion in cases of sexual assault, incest, and medical necessity would necessarily “authorize the state, counties, or municipalities to subsidize a crime.”

That said, the court concluded that state abortion legislation had “impliedly repealed” the ban.

“This case is about giving effect to 50 years’ worth of laws passed by the legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions,” the majority opinion states. “The legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future. But the only way to give effect to what the legislature has actually done over the last 50 years is to conclude that it impliedly repealed the 19th century near-total ban on abortion, and that [the ban] therefore does not prohibit abortion in the State of Wisconsin.”

This story has been updated.