A conservative prosecutor’s attorney struggled to convince the Wisconsin Supreme Court to reactivate the state’s 1849 law that previously banned abortion with no exception for rape or incest during oral arguments Monday.
“We’re trying to figure out if medical providers here are going to be able to save women’s lives,” liberal-leaning Justice Jill Karofsky said Monday. “We better get this right.”
Tensions were high during the two-hour session. Attorney Matthew Thome, representing Sheboygan County District Attorney Joel Urmanski, asked the court to overturn a lower court’s ruling that allowed abortion services to be provided in the state, drawing verbal backlash from the court’s liberal judges.
Thome told the court he wasn’t arguing about the implications of the 1849 law, rather that the law can co-exist with a 1985 Wisconsin law that allows abortions before a fetus can survive outside the womb. Thomes said a ruling that says the 1985 law effectively repealed the 1849 law would be “anti-democratic.”
“It’s a statute this Legislature has not repealed and you’re saying, no, you actually repealed it,” he said.
Justice Rebecca Dallet rebuked Thome, telling him white men who passed the 1849 law held all the power at the time, and disregarding laws passed in the last 40 years would be undemocratic.
“I fear what you are asking this court to do is sign the death warrant of women and children and pregnant people in this state,” Karofsky said.
The history of abortion access in Wisconsin
When the Supreme Court ended constitutional protections for the procedure in June 2022, an 1849 law banning abortions with no exception for rape or incest went into effect in Wisconsin, despite a majority of residents approving of abortion until viability.
In 2022, Attorney General Josh Kaul challenged the 175-year-old law after Planned Parenthood of Wisconsin (PPWI) filed a petition asking the court to declare abortion access a right protected by the state constitution, arguing the 1985 law supersedes the ban, making the 1849 law null.
Dane County Circuit Judge Diane Schlipper ruled in July 2023 the 1849 law does not prohibit consensual medical abortions, allowing PPWI to resume abortion services in the state. This ruling prompted Urmanski to ask the Wisconsin Supreme Court to take up the ruling.
The court voted 4-3 along ideological lines to take up PPWI’s case and unanimously to take up Urmanski’s appeal. No oral arguments have been scheduled yet for the PPWI case.
While a ruling isn’t expected from the Wisconsin Supreme Court for a few weeks, it is unlikely the 1849 law will be upheld by the court’s liberal majority.
State News Editor Anna Kleiber contributed reporting to this article.
