In a riveting session that unfolded Monday morning, the Wisconsin Supreme Court appeared deeply skeptical about the enforceability of an 1849 state law banning nearly all abortions. The heated oral arguments saw justices grilling attorneys on both sides, suggesting the court may be preparing to strike down the 175-year-old statute.
The legal battle over abortion rights in Wisconsin has raged since the U.S. Supreme Court’s monumental decision to overturn Roe v. Wade in 2022. That ruling triggered abortion bans in numerous states, including Wisconsin, where the restrictive 1849 law suddenly sprang back to life after lying dormant for decades.
A Court Transformed
Monday’s hearing took place before a Wisconsin Supreme Court that has undergone a dramatic ideological shift in recent months. The April 2023 election of Justice Janet Protasiewicz, an outspoken supporter of abortion rights, helped flip the court to a narrow liberal majority for the first time in years.
With the court’s conservative bloc now in the minority, many legal experts believe it is highly unlikely the justices will uphold the 1849 ban. Monday’s arguments only seemed to reinforce that prediction, as the liberal wing of the court subjected the law’s defenders to withering questioning.
Justices Grill Ban’s Backers
Justice Jill Karofsky, one of the court’s liberal members, appeared especially hostile to the arguments put forth by those seeking to preserve the 1849 abortion ban. In one particularly contentious exchange with an attorney representing Sheboygan County District Attorney Joel Urmanski, a key backer of the ban, Karofsky demanded to know whether the law would force even young children to carry pregnancies to term.
“Just to be clear, a 12-year-old girl who was sexually assaulted by her father and as a result, became pregnant, under your interpretation … she would be forced to carry her pregnancy to term?” Karofsky pointedly asked the district attorney’s legal counsel.
The justice further noted the grim irony that, under such a scenario, “the penalty for aborting after a sexual assault would be more severe than the penalty for the sexual assault” itself.
Life-or-Death Stakes
Karofsky also grilled the ban’s defenders on the potentially lethal consequences for women, saying: “I fear that what you are asking this court to do is to sign the death warrants of women and children and pregnant people in this state, because under your interpretation, they could all be denied lifesaving medical care.”
The attorney’s response that he was unable to fully address such medical questions because he himself is “not a doctor” did little to allay the justice’s obvious skepticism about the 1849 ban’s draconian provisions.
Conflicting Laws at Issue
A key point of contention in Monday’s hearing was whether various abortion laws passed in Wisconsin after the U.S. Supreme Court’s original 1973 Roe decision had effectively superseded, and thus nullified, the far older ban from 1849.
Hannah Jurss, an assistant attorney general arguing against the ban, contended that “there is nothing in the text” of the more recent, post-Roe statutes to suggest that lawmakers intended for the state to revert back to the 1849 prohibition in the event Roe was ever overturned.
Conservative Justice Brian Hagedorn pushed back on that claim, saying that the 1849 law is “still there” on the books and that the judiciary’s job was to apply such laws, not “edit” or “rewrite them.” But Hagedorn’s argument did not seem to carry the day with his liberal colleagues.
A Patchwork of Laws
Wisconsin is not the only state that has been thrown into legal turmoil in the wake of the U.S. Supreme Court’s reversal of Roe. Numerous other states have seen their abortion landscapes utterly remade, as once-unenforceable bans and restrictions have suddenly been resurrected.
In some states, like Wisconsin, this has resulted in a confusing patchwork of overlapping and even contradictory laws being in effect simultaneously. Monday’s arguments only underscored the depth of the legal quagmire that state courts must now attempt to navigate.
An Uncertain Road Ahead
While the Wisconsin Supreme Court’s liberal justices appeared deeply skeptical of the 1849 abortion ban, the ultimate fate of the law still remains uncertain. The court is not expected to issue a final ruling for several months.
Even if the court does ultimately strike down the 1849 statute, abortion rights in Wisconsin will likely remain the subject of fierce legal and political battles for the foreseeable future. Anti-abortion advocates have vowed to continue pushing for new restrictions, while pro-choice activists remain committed to enshrining protections for the procedure.
For now, all eyes remain fixed on the state Supreme Court and the handful of justices who will soon decide whether Wisconsin’s 175-year-old abortion ban lives or dies. The stakes, for countless women across the state, could not be higher.
