Photo by Gayatri Malhotra on Unsplash
Abortion is once again legal in Wisconsin. The Wisconsin Supreme Court has officially ruled that a 1800s near-total abortion ban is unenforceable. In a majority opinion for the case, Kaul v. Urmanski, authored by Justice Rebecca Dallet, the court explained that the Wisconsin Legislature effectively repealed the 1849 abortion ban by enacting comprehensive abortion-related laws over the past 50 years.
The pre-Civil War law made it a felony to provide an abortion except to save the woman’s life. No surprise that the all-male state legislature narrowly passed this law before women even had the right to vote.
During oral arguments last fall, the court’s progressive wing was critical of the ban. Then-Justice Jill Karofsky passionately pointed out how the abortion ban punishes and further traumatizes victims of sexual assault. She called the ban a “death warrant” for all pregnant people in the state and described the catastrophic results of the ban as “a world gone mad.”
Now, the court has brought an end to this madness. In the majority opinion, the court reasoned that by enacting “comprehensive legislation” that “thoroughly covers the entire subject of abortion,” the legislature “clearly meant” the newer laws to “substitute for the 19th century near-total ban on abortion.” The court based its decision on the doctrine of “implied repeal.” Without getting too technical, “implied repeal” happens when the state legislature enacts newer legislation that comprehensively covers a topic and contradicts an older statute on the same subject. In these rare instances, the court will determine that the legislature’s actions imply that the older law is no longer valid.
In her concurrence, now-Chief Justice Karofsky took time to highlight how the 1800s ban stripped “women and pregnant people of the dignity and authority to make intimate and personal choices,” pointing out that the ban makes “no exceptions for rape, incest, fetal abnormality, or the health of the mother.” That “means a 12-year-old girl who is sexually assaulted by her father and becomes pregnant must carry that pregnancy and endure childbirth.” It’s always ironic that the conservative Christians fighting for abortion bans see no problem with forcing literal children to carry pregnancies that result from incestuous rape.
In an unusual but poignant move, Karofsky recounted how her own great-grandmother, Julia, died in 1929, after being forced to seek an illegal abortion. Pregnant, with three children already, and unable to secure access to the medical care needed to end her unwanted pregnancy safely and with dignity, “she took matters into her own hands and ultimately bled to death in a Boston hospital.”
The ruling is cause for celebration, cementing a lower court ruling that had made abortion care once again accessible in Wisconsin as we awaited the state high court’s verdict on the archaic law. Pregnant Wisconsinites can now confidently make their own healthcare decisions and determine for themselves whether to continue a pregnancy. This is a huge win in Wisconsin for the right to bodily autonomy and controlling one’s own destiny.
However, this case leaves one critical question unanswered: Does Wisconsin’s Constitution guarantee the right to abortion?
In early 2024, Planned Parenthood of Wisconsin filed its lawsuit directly before the state’s supreme court. PPWI argued that the 1800s abortion ban violated the Wisconsin Constitution by interfering with Wisconsinites’ right to bodily autonomy. While the court initially agreed to hear PPWI’s lawsuit, it dismissed the case shortly after releasing its opinion in Kaul v. Urmanski. Because PPWI’s lawsuit was challenging the 1800s abortion ban, the court’s decision that the ban is unenforceable effectively mooted PPWI’s case.
PPWI hasn’t given up yet, though. Its chief strategic officer implied that the organization may challenge some of the other restrictive abortion laws in Wisconsin to establish a state constitutional right to abortion.
As Christian nationalists continue to fight bodily autonomy and push for strict abortion bans, establishing abortion rights at the state level is crucial. For now, Wisconsinites can take a breath and enjoy the relief of knowing abortion remains legal. But I’ll hazard a guess that it won’t be too long before a new lawsuit is brought challenging any of the many restrictive and unnecessary abortion regulations in Wisconsin. Sooner rather than later, the Supreme Court of Wisconsin will be forced to decide whether the Wisconsin Constitution protects the right to abortion.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
