The Wisconsin Supreme Court on Monday ruled against two challenges to a 175-Year-Old Law That Conservatives Uphold Bans Abortion without the cases being handled through lower courts.
Pro-abortion advocates have a strong chance of winning in both cases given the liberal bias of the Supreme Court and comments a liberal judge made during the campaign about her support for abortion rights.
Wisconsin lawmakers passed laws in 1849 that were broadly interpreted as banning abortion in all cases except to save the mother’s life. The U.S. Supreme Court’s landmark 1973 ruling in Roe v. Wade legalizing abortion struck down the laws, but lawmakers never repealed them. The high court’s 2022 decision to overturn Roe v. Wade reenforced them.
Democratic Attorney General Josh Kaul filed a lawsuit in 2022 challenging the bylawsarguing that they were too old to enforce and that a 1985 law that allows abortions before a fetus can survive outside the womb supersedes them. A Dane County judge ruled last year that the statutes prohibit attacking a woman in an attempt to kill her unborn baby, but not abortions. The decision Planned Parenthood encourages abortions to be offered again in Wisconsin after proceedings were halted when the U.S. Supreme Court overturned Roe v. Wade.
Sheboygan County District Attorney Joel Urmanski, a Republican, asked the state Supreme Court in February to overturn the ruling without allowing an appeal through the state’s lower appellate courts. He argued that the ruling would have a statewide impact and guide lawmakers and that the case would ultimately end up in the Supreme Court anyway.
Days after Urmanski filed his petition, Planned Parenthood of Wisconsin sued Urmanski, asking the Supreme Court to hear it directly. The organization is seeking a ruling that the 1849 statute is 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 — in effect, asking the court to declare a constitutional right to abortion.
The court issued orders indicating that the justices voted unanimously to hear Urmanski’s appeal and voted 4-3 to hear the Planned Parenthood case. The court’s four liberal justices voted to hear that case, and its three conservative justices voted against hearing it.
Urmanski’s attorneys, Andrew Phillips and Matthew Thome, did not immediately respond to an email seeking comment.
It seems nearly impossible to convince the court’s liberal majority to uphold the statute. Liberal Justice Janet Protasiewicz 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 out of concern that they might appear biased to the court.
The conservative justices accused the liberal majority in their Planned Parenthood dissent of engaging in politics.
“The signal to the watching public is that when certain policy 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 vote that the state Supreme Court is supposed to decide important state constitutional issues.
“Regardless of one’s views on the morality, legality, or constitutionality of abortion, it is undeniable that abortion regulation is an issue of enormous personal and practical importance to many Wisconsinites,” Karofsky wrote.
Michelle Velasquez, Chief Strategy Officer at Planned Parenthood of Wisconsin, said in a statement that the organization is grateful the court agreed to hear the case and that Wisconsin residents should know whether abortion is legal in the state.
The media outlet Wisconsin Watch obtained a leaked draft of the order taking the case last week, prompting Chief Justice Annette Ziegler to launch an investigation.
