A judge in Wisconsin has ruled that the state’s 173-year-old abortion ban does not apply to consensual medical abortions, allowing a lawsuit challenging the ban to proceed. The judge, Diane Schlipper, stated that the ban’s legal language does not explicitly use the term “abortion,” therefore only prohibiting attacks on pregnant women in an attempt to kill the unborn child. This ruling is significant as Wisconsin’s abortion ban has remained in effect since 1849, but was nullified by the Supreme Court’s Roe v. Wade decision in 1973. However, the ban was reactivated with the Supreme Court’s decision last June to overturn Roe v. Wade.
The reversal of Roe v. Wade has energized Democratic voters, and the state’s Democratic attorney general, Josh Kaul, has filed a lawsuit to repeal the ban. Kaul argues that the ban is too old to be enforced and that a 1985 law allowing abortions before a fetus can survive outside the womb supersedes the ban. Several doctors have joined the lawsuit as plaintiffs, expressing their fear of prosecution for performing abortions.
The district attorneys in the three counties where abortion clinics operated until Roe v. Wade was overturned have been named as defendants in the lawsuit. One of them, Sheboygan County’s Republican district attorney, Joel Urmanski, filed a motion to dismiss the case in December, arguing that the ban and the 1985 law complement each other. According to Urmanski, the newer law provides an additional charging option for prosecutors by outlawing abortions post-viability.
Judge Schlipper has interpreted the 1849 law as prohibiting the killing of fetuses by assaulting or battering the mother. She clarified that the ban does not apply to consensual medical abortions since it does not use the term “abortion.” Therefore, doctors who perform abortions are only criminally liable if the fetus was viable under the 1985 law. This interpretation suggests that the doctor plaintiffs may ultimately succeed in their claim that they cannot be prosecuted for performing abortions.
The ruling has disappointed anti-abortion advocates such as Wisconsin Right to Life, while Wisconsin Governor Tony Evers sees it as a step toward restoring reproductive rights. Regardless of the eventual ruling, this case is expected to reach the state Supreme Court, where liberal justices will soon have a majority and could potentially support abortion rights.
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