Liberal-Majority State Supreme Court Strikes Down Wisconsin’s 1849 Abortion Law

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The Wisconsin Supreme Court struck down Wisconsin’s 1849 abortion law on Wednesday, ending the state’s near-total ban on the procedure. In a narrow 4–3 vote, the court’s liberal majority ruled that more recent abortion regulations effectively replaced the 176‑year‑old statute. The ruling follows an intense judicial election that reshaped the state’s high court after over $100 million poured into the race, making it the most expensive judicial contest in U.S. history. Democratic‑backed Justice Susan Crawford’s victory flipped the court’s balance after 15 years of conservative control.

Newer Abortion Laws Supersede the 1849 Ban

Justice Rebecca Dallet, writing for the majority, noted that state lawmakers passed detailed abortion regulations starting in the 1970s, including a 1985 law permitting abortions until fetal viability (around 20 weeks). “We conclude that comprehensive legislation regulating abortion so thoroughly covers the subject that it replaced the 1849 ban,” Dallet wrote.

Wisconsin’s 1849 statute, enacted by an all‑male legislature, made abortion a felony unless the mother’s life was at risk, with no exceptions for rape or incest. Although unenforced for decades, the law resurfaced in 2022 when the U.S. Supreme Court overturned Roe v. Wade. Wisconsin Attorney General Josh Kaul sued, arguing newer statutes invalidated the old ban. Republican prosecutors countered that both laws could coexist, likening the overlap to duplicate penalties for the same offense.

Partisan Divide Mirrors National Debate

Conservative Justice Annette Ziegler called the decision a “jaw‑dropping exercise of judicial will,” accusing the liberal majority of imposing personal views over the law. In contrast, Justice Jill Karofsky—who joined the majority—highlighted the real‑life impact of abortion restrictions, citing stories of women who died from unsafe procedures and recalling her great‑grandmother’s death during an illegal abortion in 1929.

Public support for legal abortion in Wisconsin has grown since Roe’s repeal. According to AP VoteCast, 62% of Wisconsin voters in 2024 backed legal abortion in all or most cases, while only 5% opposed it under any circumstance. Governor Tony Evers praised the ruling: “Today, the Wisconsin Supreme Court upheld the basic freedom for women to consult their family, faith, and doctor.”

Aftermath of Dobbs and Ongoing Legal Uncertainty

The 2022 Supreme Court decision in Dobbs v. Jackson ended nearly 50 years of federal protections. Like several states, Wisconsin faced doubt over whether dormant bans could be enforced. Planned Parenthood clinics initially halted abortions, fearing prosecutions under the 1849 law. In 2023, a lower court ruled the ban applied only to non‑consensual feticide, not voluntary terminations; Wednesday’s ruling cements that view.

Wisconsin still enforces other restrictions: a 24‑hour waiting period, mandatory ultrasounds, parental consent for minors, and a ban on most abortions after 20 weeks. Anti‑abortion groups such as Wisconsin Right to Life condemned the decision. Executive Director Heather Weininger called it “deeply disappointing” and accused the court of legislating from the bench. Conservative lawmakers may seek new restrictions, but their path forward remains unclear.

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