Wisconsin Supreme Court to consider whether law bans abortion

MAdison, Wis. — The Wisconsin Supreme Court decided Tuesday to consider two appeals against a 175-year-old law that conservatives say bans abortion, without letting the cases proceed to lower courts.

Abortion advocates have an excellent chance of winning either way, given the liberal leanings of the Supreme Court and remarks made by a liberal justice on the campaign trail about his support for abortion rights.

In 1849, Wisconsin lawmakers enacted laws that had been widely interpreted as banning abortion in all cases except to save the mother’s life. The landmark 1973 U.S. Supreme Court decision Roe v. Wade, legalizing abortion, overturned those laws, but lawmakers never repealed them. The Supreme Court’s 2022 decision to overturn Roe v. Wade revived them.

In 2022, Democratic Attorney General Josh Kaul filed a lawsuit challenging the laws, arguing that they were too old to be enforced and that a 1985 law allowing abortions before a fetus can survive outside the womb supersedes them. A Dane County judge ruled last year that the laws prohibit assaulting a woman in an attempt to kill her unborn baby, but do not prohibit abortions. The decision encouraged Planned Parenthood to resume providing abortions in Wisconsin after halting the process when the U.S. Supreme Court overturned Roe v. Wade.

In February, Sheboygan County District Attorney Joel Urmanski, a Republican, asked the state Supreme Court to overturn the decision without allowing an appeal to the state’s lower appellate courts. He argued that the decision would have a statewide impact and guide lawmakers and that the case would eventually end up before the Supreme Court anyway.

Days after Urmanski filed his petition, Planned Parenthood of Wisconsin filed a lawsuit against him, asking the Supreme Court to take up the case directly. The organization is seeking a ruling that the 1849 laws are unconstitutional, arguing that the state constitution’s declaration that people have the right to life, liberty and the pursuit of happiness means that women have the right to control their own bodies — essentially asking the court to declare a constitutional right to abortion.

The court issued orders indicating that the justices voted unanimously to accept Urmanski’s appeal and voted 4-3 to accept the Planned Parenthood case. The court’s four liberal justices voted to accept the case, and the court’s three conservative justices voted against it.

Urmanski’s attorneys, Andrew Phillips and Matthew Thome, did not immediately respond to an email seeking comment.

Convincing the court’s liberal majority to uphold these statutes seems nearly impossible. Liberal Justice Janet Protasiewicz even went so far as to openly declare during her campaign that she supports abortion rights, a major departure for a judicial candidate. Typically, such candidates refrain from discussing their personal views for fear of appearing biased on the bench.

Conservative justices accused the liberal majority of playing politics in their opposition to Planned Parenthood.

“The signal to the observing public is that when certain political issues strike the right chord, this court will follow the party line, not the law,” Hagedorn wrote.

Liberal Justice Jill Karofsky countered in a concurring opinion that the state Supreme Court is supposed to decide important state constitutional questions.

“Whatever one’s views on the morality, legality or constitutionality of abortion, it is undeniable that the regulation of abortion is an issue of immense personal and practical importance to many Wisconsinites,” Karofsky wrote.

Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said in a statement that the organization was grateful the court agreed to take its case and that Wisconsin residents need to know whether abortion is legal in the state.

Wisconsin Watch, a news outlet, obtained a leaked draft of the order accepting the case last week, prompting Chief Judge Annette Ziegler to call for an investigation.

Anti-abortion groups have denounced the Supreme Court’s decision to take up the Planned Parenthood case.

“All Wisconsinites should be disturbed by this blatant use of the justice system as a weapon to enshrine death on demand,” Heather Weininger, executive director of Wisconsin Right to Life, said in a statement.