The Wisconsin Supreme Court appears to be against the 1849 abortion ban

In 1849, Wisconsin passed an abortion ban with no exceptions. This remained true until Roe v. Wade became the law of the land. When the fascist faction of SCOTUS rejected it, Wisconsin returned to the 174-year-old law. This was immediately challenged, and in December 2023, Dane County Circuit Court Judge Diane Schlipper ruled that the ban only applied to feticide by someone other than the mother and not to abortions. This ruling was subsequently appealed until it ended up before the Wisconsin Supreme Court.

Those in favor of the law strictly argued that the law is the law and were not at all concerned about whether it was a just law. While those opposed to the ban argued that it was unenforceable because it was so poorly written and because over the generations other laws regarding abortion had replaced the old law.

At least two Supreme Court justices, Rebecca Dallet and Jill Karofsky, made clear they had real problems with the old law. Dallet pointed out that the law was not reflective of where we are as a society today, and did not apply equally to everyone:

Liberal judge Rebecca Dallet quickly challenged the validity of the 19th century law, insisting it was passed before women and men had equal rights.

“In 1849, the only people who had rights were white men with property,” Dallet said.

Karofsky took a much stronger, frontal position. First, she pointed out that a twelve-year-old girl who had been the victim of incest would be forced to carry the baby to term. Then she actually drove home absurdity and injustice of the abortion ban:

“How about a woman who is a freshman here at the University of Wisconsin-Madison? If she was sexually assaulted and it’s charged as third-degree sexual assault… that would be sexual intercourse without consent. If she became pregnant as a result of the sexual assault, would it be illegal for her to have an abortion?” said Karofsky.

“Right, it would be illegal for a doctor to perform an abortion in the state of Wisconsin,” Thome said.

“If her attacker is charged… he could face a maximum prison sentence of 10 years because that would be a Class G felony,” Karofsky said. “In that case, the penalty for breaking off after an assault would be heavier than the penalty for the assault.”

A study published in the Journal of the American Medical Association estimates that since the Dobbs decision, more than 64,000 pregnancies have resulted from rape in states with abortion bans.

“I fear that what you are asking this Court to do is sign the death warrants for women, children and pregnant people in this state, because under your interpretation they could all be denied life-saving medical care, while the medical professionals who are accused of taking The care of them is forced to stand idly by,” Karofsky said. “This is the world gone mad.”

The Wisconsin Supreme Court has also agreed to hear a second abortion-related lawsuit filed by Planned Parenthood. In that lawsuit, they will argue that the state’s constitution guarantees the right to equal protection, gives women the right to have an abortion and allows doctors to perform those abortions.