Wisconsin Supreme Court Strikes Down 'Archaic' 1849 Abortion Ban

Rights advocates celebrated Wednesday after the Wisconsin Supreme Court's liberal majority struck down the state's abortion ban from 1849, but campaigners also emphasized that threats to specific healthcare providers and reproductive freedom in general persist.

After the U.S. Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization decision nixed nationwide abortion rights, the Badger State's anti-choice movement argued that the old ban, § 940.04(1), was back in effect. However, the Wisconsin top court concluded 4-3 that it is not, pointing to the state Legislature's actions between Dobbs and Roe v. Wade in 1973.

"We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the 'who, what, where, when, and, how' of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion," Justice Rebecca Frank Dallet wrote for the majority. "Accordingly, we hold that the legislature impliedly repealed § 940.04(1) as to abortion, and that § 940.04(1) therefore does not ban abortion in the state of Wisconsin."

"With this new ruling from our state's highest court, it's time for Wisconsin Republicans to stop forcing their way into our exam rooms."

Planned Parenthood of Wisconsin initially stopped providing abortions due to uncertainty over the old ban but resumed care a few months after Dane County Judge Diane Schlipper ruled in July 2023 that "there is no such thing as an '1849 abortion ban' in Wisconsin." Joel Urmanski, Sheboygan County's Republican district attorney, asked Schlipper to reconsider her decision, but she reaffirmed it that December. Urmanski then turned to the state's top court, resulting in Wednesday's ruling.

"Today's ruling is another important step forward in protecting and expanding access to abortion in Wisconsin," Planned Parenthood Advocates of Wisconsin said on social media. "Since the overturning of Roe, Planned Parenthood of Wisconsin has maintained that Wis. Stat. 940.04 could not be enforced against abortion providers. This final ruling again confirms this."

"While we celebrate this ruling, there is more to be done. We will continue essential work to help protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive healthcare in our state can get the nonjudgmental and compassionate care they deserve," the group added, thanking Democratic Gov. Tony Evers and Attorney General Josh Kaul "for their leadership and efforts to protect reproductive freedom in Wisconsin."

Melinda Brennan, executive director of the ACLU of Wisconsin, had a similar reaction to the new decision, saying in a Wednesday statement that "we have been waiting for this moment since the United States Supreme Court overturned our constitutional right and generational expectation to abortion."

"Since then," she said, "pregnant people in Wisconsin have dealt with the catastrophic consequences of having their bodily autonomy stripped from them—including forced pregnancy, denial of critical medical care for pregnancy-related complications like miscarriage, and having to leave home just to get the treatment they need and deserve. Even though that right was restored by lower courts, the fact that the Wisconsin Supreme Court has now rendered the criminal abortion ban unenforceable means Wisconsinites no longer have to fear the archaic 1849 ban could go back into effect."

"With the ban struck down, Wisconsin is a more free and more just place to live," she added. "But that doesn't mean it's time to back down. The political attacks on reproductive justice will not slow down, and we must remain vigilant to make sure everyone who can get pregnant has access to the full range of reproductive healthcare, no matter where in the state they live. Politicians will keep trying to legislate away and restrict our reproductive rights, as well as roll back LGBTQ rights, freedom of expression, and more. While we should celebrate this monumental win, we can't let up."

Lucy Ripp of A Better Wisconsin Together, a progressive research and communications hub affiliated with ProgressNow, responded to the ruling by urging elected Republicans in the state to stop attacking reproductive freedom.

"The Wisconsin Supreme Court's ruling in this case is a historic step forward in protecting and expanding abortion rights in Wisconsin," said Ripp. "We applaud the progressive majority on the court for taking this case and ruling to protect Wisconsinites' right to access abortion care."

"In the face of relentless attacks from Republicans, the vast majority of Wisconsinites have said time and time again that decisions on abortion should be made between a patient and their doctor, not politicians," she declared. "With this new ruling from our state's highest court, it's time for Wisconsin Republicans to stop forcing their way into our exam rooms and finally put an end to their repeated attacks on our access to reproductive healthcare."

The swing state's highest court has attracted national attention in recent years, including with an April election to replace retiring Justice Ann Walsh Bradley, who joined Wednesday's majority opinion. This spring, Susan Crawford defeated far-right Brad Schimel, securing liberals' majority until 2028. Crawford is set to be sworn in at the beginning of August.

While the Wisconsin Supreme Court just affirmed the right to abortion in the state, access to such care remains at risk, in part due to recent action at the federal level. This week, Republicans in Congress are working to pass President Donald Trump's so-called Big Beautiful Bill, which critics call the "Big Ugly Bill" because of provisions including one to "defund" Planned Parenthood by blocking Medicaid payments to abortion providers.

After the U.S. Senate sent the megabill back to the House of Representatives on Tuesday, Planned Parenthood Action Fund president and CEO Alexis McGill Johnson blasted it as "a backdoor abortion ban," warning that "this bill threatens to close nearly 200 Planned Parenthood health centers and will create devastating gaps in our healthcare infrastructure by putting the full range of reproductive care, like birth control, cancer screenings, and STI testing and treatments out of reach for many."

In Wisconsin specifically, the Milwaukee Journal Sentinel reported Monday, "it would mean more than half of Planned Parenthood's revenue would vanish. Health centers would close and staff would be laid off, senior leaders have said. And the nearly 1 in 5 Wisconsin residents who are enrolled in Medicaid would no longer be able to receive care at Planned Parenthood."