The Wisconsin Supreme Court will hear oral arguments on whether the 1849 abortion ban still stands

MADISON, Wis. (AP) – The Wisconsin Supreme Court will hear oral arguments Monday on whether a law that lawmakers passed more than a decade before the Civil War is prohibited abortion and can still be enforced.

Abortion rights advocates have an excellent chance of winningas liberal justices control the court and one of them noted during the campaign that she supports abortion rights. Monday’s arguments are little more than a formality ahead of a ruling, which is expected to take weeks.

Wisconsin lawmakers passed the first state ban on abortion in 1849. That law stated that anyone who killed a fetus, unless the intention was to save the life of the mother, was guilty of manslaughter. Lawmakers passed laws about a decade later that prohibited a woman from trying to induce her own miscarriage. In the 1950s, lawmakers revised the language of the law to make it a crime to kill an unborn child or kill the mother with the intent to destroy her unborn child. The revisions allowed a doctor, in consultation with two other doctors, to perform an abortion to save the mother’s life.

The landmark 1973 U.S. Supreme Court decision Roe v. Wade, which legalized abortion nationwide, overturned the ban in Wisconsin, but lawmakers never repealed it. When the Supreme Court overturned Roe two years ago, conservatives argued that the ban was once again enforceable in Wisconsin.

Democratic Attorney General Josh Kaul has filed a lawsuit challenge the law in 2022. He argued that a 1985 Wisconsin law that allows abortions before a fetus can survive outside the womb supersedes the ban. Some babies can survive with medical assistance after 21 weeks of pregnancy.

Sheboygan County District Attorney Joel Urmanski, a Republican, argues that the 1849 ban should be enforceable. He claims that it has never been repealed and that it can coexist with the 1985 law because that law did not legalize abortion at any time. Other modern abortion restrictions also don’t legalize the practice, he argues.

Dane County Circuit Judge Diane Schlipper ruled last year that the old ban prohibits feticide – which it defined as killing a fetus without the mother’s consent – but not consensual abortions. The ruling encouraged Planned Parenthood to resume offering abortions in Wisconsin after the procedures were halted after Roe was overturned.

Urmanski asked the Supreme Court in February to overturn Schlipper’s ruling without waiting for the lower appeals courts to rule first. The court decided to hear the case in July.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly whether there is a constitutional right to abortion in the state. The court agreed in July to hear that case as well. The judges still have to schedule oral arguments.

It seems virtually impossible to convince the Court’s liberal majority to uphold the ban. Liberal judge Janet Protasiewicz openly stated during her campaign that she supports the right to abortion, an important step for a judicial candidate. Typically, such candidates refrain from speaking about their personal views to avoid the appearance of bias.

The court’s three conservative justices have accused liberals of playing politics with abortion.