Current Events > Wisconsin Supreme Court strikes down 176 year-old abortion ban

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MADISON, Wis.
The liberal-controlled Wisconsin Supreme Court struck down Wisconsin's 1849 abortion ban Wednesday in a highly anticipated and high-profile decision.
In the 4-3 ruling, the court's four liberal justices -- Rebecca Dallet, Jill Karofsky, Ann Walsh Bradley and Janet Protasiewicz - voted to invalidate the law. Conservative justices Annette Ziegler, Rebecca Bradley and Brian Hagedorn dissented.
The liberal majority ruled that the 1849 law was superseded by a newer state law that criminalizes abortions only after a fetus can survive outside the womb.
State lawmakers adopted the ban in 1849, making it a felony when anyone other than the mother intentionally destroys the life of an unborn child.

The liberal majority ruled that the 1849 law was superseded by a newer state law that criminalizes abortions only after a fetus can survive outside the womb.

It's a shame the article is geo-restricted because I'd like to hear the reasoning those three judges had to try and apply an existing law that had already been superseded by a subsequent law. Surely this is clear example of legislating from the bench.

"We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the 'who, what, where, when, and how' of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion," Justice Rebecca Dallet wrote for the majority.
Justice Annette Ziegler blasted the decision in her dissent, calling the ruling "a jaw-dropping exercise in judicial will, placing the personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law."
The 1849 law was in effect until 1973, when the U.S. Supreme Courts landmark Roe v. Wade decision, legalizing abortion nationwide, nullified it. Legislators never officially repealed the ban, however, and conservatives argued that the U.S. Supreme Courts 2022 decision to overturn Roe reactivated it.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that the ban was trumped by abortion restrictions legislators enacted during the nearly half-century that Roe was in effect. Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that the 1849 ban could coexist with the newer abortion restrictions, just as different penalties for the same crime coexist.
Dane County Circuit Judge Diane Schlipper ruled in 2023 that the 1849 ban outlaws feticide which she defined as the killing of a fetus without the mothers consent but not consensual abortions. Abortions have been available in the state since that ruling but the state Supreme Court decision gives providers and patients more certainty that abortions will remain legal in Wisconsin.
Urmanski asked the state Supreme Court to overturn Schlippers ruling without waiting for a decision from a lower appellate court. It was expected as soon as the justices took the case that they would overturn the ban. Liberals hold a 4-3 majority on the court and one of them, Janet Protasiewicz, openly stated on the campaign trail that she supports abortion rights.
Democratic-backed Susan Crawford defeated conservative Brad Schimel for an open seat on the court in April, ensuring liberals will maintain their 4-3 edge until at least 2028. Crawford has not been sworn in yet and was not part of Wednesdays ruling.