The ghost of an 1849 law that criminalized nearly all abortions in Wisconsin was laid to rest on Wednesday, as the state’s Supreme Court ruled the archaic statute unenforceable in today’s legal landscape. In a tightly split 4–3 decision, the justices declared that modern abortion laws have so thoroughly overtaken the old ban that it no longer holds legal water.
The ruling came in response to a case brought by Wisconsin’s Attorney General, who argued that the 19th-century law had been effectively erased by a suite of newer abortion regulations, including a 2015 statute limiting the procedure after 20 weeks of pregnancy. The court agreed, saying the newer framework serves as a “clear substitute” for the older near-total ban.
Justice Rebecca Dallet, writing for the majority, noted that although the old law had never been formally repealed, it had long been dormant—rendered inert by evolving legislation and the landmark Roe v. Wade decision in 1973, which had previously protected abortion rights nationwide until it was overturned in 2022.
The legal battle began shortly after Roe’s fall, when a Republican district attorney, Joel Urmanski of Sheboygan County, claimed the 1849 law was back in force and could be used to prosecute abortion providers. Attorney General Josh Kaul swiftly sued, seeking judicial clarity.
Wednesday’s decision not only ends that lawsuit in Kaul’s favor but also prompted the court to toss out a separate challenge by Planned Parenthood Wisconsin, which had argued the ban violated the state constitution. The organization expressed disappointment but stood beside Kaul at a press conference, calling the ruling a crucial first step in clawing back reproductive rights.
Justice Annette Ziegler didn’t mince words in her dissent, accusing the majority of legal trickery and warning that the court was stepping outside its constitutional bounds. “The majority’s smoke-and-mirrors legalese is nothing more than ‘painting a mule to resemble a zebra, and then going zebra hunting,’” she wrote, her metaphor as biting as her critique.
The decision comes just as a newly elected justice, Susan Crawford—who ran openly on a platform supporting abortion rights—prepares to take her seat. Crawford’s April victory, part of a fiercely contested and record-breaking judicial election, cemented a liberal majority on the bench for the first time in 15 years.
Wisconsin abortion providers, who had halted services in 2022 out of fear of prosecution, resumed operations in 2023 after a lower court ruled the 1849 law unenforceable. That decision has now been affirmed at the highest level.
With abortion rights increasingly shaped by state courts, the Wisconsin ruling signals a significant shift—not just in legal precedent, but in political momentum. For now, the shadows of the 19th century have been pushed back, and a new chapter in Wisconsin’s reproductive rights battle has been written.
