The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman/Wisconsin Examiner)

In a 4-3 decision, Wisconsin Supreme Court ruled Wednesday that the state’s 1849 law banning abortion had been “impliedly repealed” by the Legislature when it passed laws over the past half century “regulating in detail the ‘who, what, where, when, and how’” of abortion. 

The Court’s majority opinion, authored by Justice Rebecca Dallet and joined by Justices Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz, finds that the Legislature could not have passed laws regulating abortion access if the 1849 statute was believed to remain in effect. 

“This case is about giving effect to 50 years’ worth of laws passed by the Legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions,” Dallet wrote. “The Legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future. But the only way to give effect to what the Legislature has actually done over the last 50 years is to conclude that it impliedly repealed the 19th century near-total ban on abortion, and that [the statute] therefore does not prohibit abortion in the State of Wisconsin.” 

Dallet wrote that when the Legislature passed laws restricting abortion under narrower circumstances, guiding “where, when and how” health care providers could perform an abortion and outlining how public money could fund abortion providers, it was repealing the 1849 law. 

The ruling comes three years after the U.S. Supreme Court overturned Roe v. Wade, the landmark Court ruling that found there was a constitutional right to abortion access and marks the conclusion of a legal dispute that helped Protasiewicz win election to the Court in 2023 and Susan Crawford win election this April. 

In response, the Court’s three conservative justices filed dissents, accusing the majority of “propaganda,” “smoke-and-mirrors legalese” and “pure policymaking.” 

“The majority’s smoke-and-mirrors legalese is nothing more than ‘painting a mule to resemble a zebra, and then going zebra hunting. But paint does not change the mule into a zebra,’” Justice Annette Ziegler wrote. “Those in the majority know better, but they do so anyway because they like the result and promised to deliver it.” 

In his dissent, Justice Brian Hagedorn wrote that the majority failed to show when the law was presumably repealed by the Legislature, saying that the opinion doesn’t properly address the Legislature’s actions in 2011 and 2015 amending the 1849 law.  

“The majority does not say when over those 40 years the Legislature once and for all repealed [the statute],” he wrote. “Was it when the Legislature passed a postviability ban? A partial-birth abortion ban? A twenty-week ban? A waiting period? A physician licensing requirement? The majority fails to say.”

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Following the ruling’s release, the state’s Democratic elected officials and abortion access activists celebrated the decision as a “win” for reproductive health care in the state. 

“Thanks to our lawsuit, today’s decision affirms that access to reproductive healthcare will continue to be available, helping ensure Wisconsin women today are not forced to face firsthand what it’s like to live in a state that bans nearly all abortions, even in cases of rape and incest,” Gov. Tony Evers said in a statement. “Today is a win for women and families, a win for healthcare professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over. I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin than it is today. That is a promise.”

Attorney General Josh Kaul, who brought the lawsuit against the law, said at a Wednesday morning news conference that the decision was an important step toward ensuring all Wisconsinites have the freedom to access abortion care, but that the Legislature should step up and further clarify the law.

“I thought we were right on the law. The arguments we made have now been vindicated,” Kaul said. “But at a time when the rights of Wisconsinites and Americans are under threat, this case is a stark reminder of how important it is that we fight for our rights, that we advocate for what is in the best interest of the people of our state, and that we stand on the side of freedom. Here today, we were able to achieve a significant victory for the freedom of Wisconsinites.”

Wisconsin’s state and federal Democratic lawmakers responded to the ruling by saying it wasn’t enough, promising to continue working to codify abortion access in law. 

U.S. Sen. Tammy Baldwin said she will continue to work to enact her proposal to ensure women across the country have access to abortion care. 

“Today’s ruling tells women across Wisconsin that we will not go back,” Baldwin said. “Today’s ruling tells women that our government trusts you to make decisions about your own body and your future. Today’s ruling tells women in our state that they are not second-class citizens. But, this fight is not over. Every woman, in every zip code, in every state deserves the same rights and freedoms. I will not stop fighting until we make that a reality and pass my bill to restore the right to abortion nationwide and allow women to make their own health care decisions without interference from judges or politicians.”

State Sen. Lisa Subeck (D-Madison) said the Legislature must now pass a bill guaranteeing the right to an abortion. 

“Now that the courts have made it clear that Wisconsin does not have a total abortion ban, we must go further,” Subeck said. “It’s time to protect reproductive rights not just in practice, but in law. We must pass the Abortion Rights Restoration Act to guarantee the right to abortion and eliminate the medically unjustified, politically motivated restrictions that still exist in our state statutes. The people of Wisconsin deserve nothing less than full access to safe and legal reproductive health care without unnecessary barriers and free from judgement.”

In a concurring opinion, Karofsky wrote that interpreting the 1849 law as banning abortion gives the state the authority to “exert total control” over women and “strips women and pregnant people of the dignity and authority to make intimate and personal choices by exposing medical professionals who perform abortions to 15-year prison terms.” 

In her opinion, Karofsky details the history of abortion access in the U.S. and highlights four women who died because of restrictive abortion bans, including the recent deaths of two Black women in Georgia and a Honduran immigrant in Texas as well as the death of her own great-grandmother in Boston in 1929. 

“I tell the stories of Amber, Candi, Josseli, and my great-grandmother Julia to remind us that severe abortion restrictions operate like death warrants,” Karofsky wrote. “Under such restrictions women, children, and pregnant people are denied life-saving medical care while medical professionals are forced to sit idly at their bedsides, unable to do their jobs. Extreme abortion restrictions revive a time in our history driven by misogyny and racism, divorced from medical science; it is a world that must be left behind.” 

In her dissent, Justice Rebecca Bradley accused Karofsky of rewriting history to achieve a desired outcome in the case. 

“Not content with effacing the law, Chief Justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as ‘pregnant people,’ slanders proponents of the pro-life perspective, and broadcasts dangerously false narratives about laws restricting abortion,” Bradley wrote. “Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist.”

People protest on June 24, 2022, in front of the U.S. Supreme Court after the release of the ruling in Dobbs v Jackson Women's Health Organization that overturned Roe v Wade case and erased a federal right to an abortion. (Photo by Brandon Bell/Getty Images)

Two years ago Megan Kling and her husband were eagerly looking forward to the birth of their third child. Then at 20 weeks they got devastating news from their doctor.

The infant, upon being born, would have no chance of surviving. He lacked critical internal organs and his brain and heart were both abnormal.

“Our baby would die, either in utero or within hours after birth,” Kling told reporters Monday morning. “We were in a situation with no good outcome.”

To carry him for another four months, knowing that he would not live, “seemed inhumane,” Kling said.

The diagnosis was confirmed at 22 weeks — and by then, Kling said, her doctors were unable to help her because of an 1849 Wisconsin law that at the time was still being interpreted as a near-blanket ban on abortion.

Kling and her husband, residents of western Wisconsin, traveled to neighboring Minnesota. There, doctors at the Mayo Clinic in Rochester confirmed that, if born, their baby would not be viable. At her request, the medical team induced labor at 23 weeks. Kling gave birth and the couple’s son died in their arms an hour later.

Kling told her story Monday at a news conference held by advocates to draw attention to next week’s third anniversary of the U.S. Supreme Court ruling ending a national right to abortion.

Dr. Nike Mourikes of the Committee to Protect Health Care said from the moment the ruling was issued, “I realized how this cruel decision would cause harm to so many lives and undermine the ability of physicians and other health care providers to care for their patients.”

Abortion was a legal right throughout her medical training and practice until the 2022 decision in Dobbs v. Jackson Women’s Health Organization, Mourikes said. 

The Court’s 1973 ruling in Roe v. Wade legalized abortion in the first 20 weeks while placing some limits on the procedure later in pregnancy. Although Mourikes had heard “the horror stories” of what women had experienced before that decision, she said, “I never imagined that we would ever, ever go back to those days again.”  

As a physician, she has cared for many women who sought abortion to end a pregnancy. “Each woman had her own unique history, her own unique reasons and circumstances that led her to make this complex decision,” Mourikes said. “But that choice was her choice, not the government’s, not a politician’s. It was her body and it was her right.”

The 2022 ruling effectively reinstated Wisconsin’s 1849 law, which at the time was widely seen as a near-blanket abortion ban.

A September 2023 Dane County Circuit Court ruling reversed that assumption, with the judge holding that the law applied to feticide, but not to elective abortions. A decision on that ruling is now pending in the Wisconsin Supreme Court.

Nevertheless, the law “casts a shadow over our state,” Morikes said. Republican lawmakers have been unwilling to repeal the law, and even when Roe v Wade was still in effect, enacted laws “that force doctors to practice medicine not for the good of their patients, but to satisfy anti-abortion politicians.”

Those include a requirement for “an invasive, sometimes painful and medically unnecessary ultrasound” before an abortion, she said, as well as “a medically unnecessary 24-hour waiting period” that requires women to visit a health provider two days in a row before having an abortion.

Sydney Andersen, a government relations specialist for Planned Parenthood Advocates of Wisconsin, said Planned Parenthood has succeeded in returning abortion services to Wisconsin since the Dane County ruling.

But the organization faces new challenges, she said. Those include the budget reconciliation bill  that passed the U.S. House last month and is now in the Senate. A provision in the bill prevents Planned Parenthood from accepting Medicaid coverage for low-income patients.

Planned Parenthood at risk of closing hundreds of clinics, drastically limiting abortion access

If the U.S. Senate enacts the provision and it becomes law, “more than 1 million patients across the United States could lose their access to birth control, wellness exams, vaccines, STI [sexually transmitted infection] testing, and cancer screenings, including over 50,000 patients in Wisconsin alone,” Andersen said. Black women, other people of color, rural residents and other low-income families would experience “the most significant impact,” she said.

Kling, who is 34 and described herself as a working mother, said she was telling the story of her third pregnancy to make the point that “abortion restrictions can impact anyone who can become pregnant.”

In an interview, Kling told the Wisconsin Examiner that she had not been politically engaged before the experience.

“I was always pro-choice, but after going through this experience I wanted to utilize my story to help people understand that this can impact anyone,” she said.

Despite the current circuit court ruling, the current state of Wisconsin law is such that hospitals “will always create policy that is more restrictive than what the law allows,” Kling said. “There’s a lot of gray area in our law right now with the politics.”

In the news conference, Kling described the emotions that washed over the couple in the hour that she and her husband held their dying infant.

“Our son only knew love,” she said. “But as parents, those were the most helpless and traumatic moments that we have ever had to endure.”

Kling said she tried to contact her Republican state lawmakers in hopes of raising their awareness about the effect of the current state of abortion restrictions. Her state representative has not responded to her calls or email messages, and her state senator’s aide said he was “too busy to schedule a 10-minute meeting to hear my story,” she said.

“Are they unwilling to understand what real women are going through or do they simply not care?” Kling said. “Is this the reality you want the women of Wisconsin to face? Forcing us to flee our state for care?”