Wisconsin's 1849 law does not ban abortion, the state Supreme Court rules

The Wisconsin Supreme Court listens to arguments during a redistricting proceeding astatine nan authorities Capitol, Nov. 21, 2023, successful Madison, Wis. The tribunal decided Wednesday, July 2, 2025, that nan state's 176-year-old rule does not prohibition abortion. Ruthie Hauge/AP/Pool The Capital Times hide caption

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Ruthie Hauge/AP/Pool The Capital Times

MILWAUKEE – Supporters of reproductive authorities are celebrating a triumph successful Wisconsin. After years of litigation complete an 1849 law that conservatives reason criminalizes abortions successful nan state, nan Wisconsin Supreme Court ruled that nan rule does not prohibition abortion.

This intends abortions tin proceed successful nan state.

It marks nan extremity of a saga that began erstwhile Roe v. Wade was overturned successful 2022, ending national law protections for abortion. While it was clear successful immoderate states that abortion would beryllium banned, and successful others that abortion would beryllium protected, Wisconsin recovered itself successful a ineligible grey area.

Because of nan 1849 law, abortion providers successful nan authorities stopped offering nan procedure. But Democratic Attorney General Josh Kaul sued astatine nan time, challenging nan law, and nan rumor of really to construe nan 1849 statute has been successful nan courts since June of 2022.

In December 2023, nan proceedings tribunal recovered that nan rule doesn't outlaw abortions, that it is really a feticide rule that makes it forbidden to onslaught and termination a woman's kid without her consent. Since that ruling, group person been capable to get abortions successful Wisconsin, up to 20 weeks aliases beyond if basal to prevention nan life aliases wellness of nan mother, according to a law passed successful nan 1980s.

The ruling, nan dissent and what's adjacent

On Wednesday, nan Wisconsin Supreme Court ruled—along ideological lines—that nan rule does not prohibition abortion. The tribunal has a 4-3 wide majority, which it maintained aft immoderate highly publicized and heavy funded elections for its unfastened seats successful 2023 and 2025.

In its ruling, nan mostly recovered that nan Wisconsin Legislature functionally repealed nan 1849 rule by later laws regulating abortion. "We reason that broad authorities enacted complete nan past 50 years regulating successful item nan 'who, what, where, when, and how' of abortion truthful thoroughly covers nan full taxable of abortion that it was meant arsenic a substitute for nan 19th period near-total prohibition connected abortion," writes nan majority.

In a dissenting opinion, blimpish Justice Annette Ziegler writes, "the mostly picks and chooses which abortion statutes stay successful force," and calls nan sentiment "a jaw-dropping workout of judicial will."

Last year, the tribunal accepted a abstracted lawsuit from Planned Parenthood of Wisconsin that based on nan statute is simply a prohibition and that it's unconstitutional. Wednesday, though, justices dismissed that lawsuit because they could only get to nan law mobility if they ruled nan rule does prohibition abortion.

Planned Parenthood had posited that nan 176-year-old rule conflicts pinch nan provisions successful nan authorities constitution establishing a correct to life, liberty and nan pursuit of happiness arsenic good arsenic adjacent protection. So, nan law mobility goes unresolved, according to Bryna Godar, a unit lawyer pinch nan State Democracy Research Initiative astatine nan University of Wisconsin Law School.

"And so, I deliberation location will beryllium continued conversations astir what law protections we person successful Wisconsin," says Godar. She says that could beryllium early tribunal cases aliases law amendment ballot questions.

Right now, citizens don't person a way to initiate law amendments via ballot measures successful Wisconsin; only nan Legislature tin do that. Wisconsin presently has a divided government, made up of a GOP-controlled Legislature and a Democratic governor. So, it's improbable that nan legislature will initiate immoderate ballot questions to found law protections for abortion wrong nan adjacent twelvemonth or, conversely, that nan Democratic politician would motion immoderate further bans into law.

But each this could alteration aft nan 2026 midterm elections successful Wisconsin, erstwhile galore authorities legislative seats and nan governor's agency will beryllium up for grabs.