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a 4-3 decision, Wisconsin Supreme Court ruled Wednesday that the state’s 1849 law banning abortion had been “impliedly repealed” by the Legislature when it passed laws over the past half century “regulating in detail the ‘who, what, where, when, and how’” of abortion.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way to give effect to what the Legislature has actually done over the last 50 years is to conclude that it impliedly repealed the 19th century near-total ban on abortion, and that [the statute] therefore does not prohibit abortion in the State of Wisconsin.”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In his dissent, Justice Brian Hagedorn wrote that the majority failed to show when the law was presumably repealed by the Legislature, saying that the opinion doesn’t properly address the Legislature’s actions in 2011 and 2015 amending the 1849 law.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.”

Sen. Patrick Testin (R-Stevens Point) speaks at a Republican news conference Wednesday before the Senate's floor session. (Photo by Baylor Spears/Wisconsin Examiner)

On unanimous voice votes, lawmakers approved legislation Wednesday that allows nurses with advanced training to practice independently in Wisconsin.

The bill now heads to Gov. Tony Evers, who vetoed similar bills twice before but who is now expected to sign the measure after negotiating changes to address his previous objections.

“I can’t stress what a team effort this was. It was bipartisan,” said Rep. Tony Kurtz (R-Wonewoc), the lead Assembly author on AB 257, before the vote on the Assembly floor. “People put their pettiness aside and they actually got a good product across the finish line.”

The Assembly passed the legislation Wednesday and the Senate concurred later in the day.

“While this legislation had been vetoed in the previous two sessions, I’m proud to say and stand before you that we have an agreement and a deal that when this reaches the governor’s desk, that is going to become law,” said Sen. Patrick Testin (R-Stevens Point).

The bill creates a new formal nursing credential under state law, Advanced Practice Registered Nurse (APRN).

To win Evers’ signature, authors of the bill agreed to increase the amount of training and supervision before an APRN can practice independently, added additional supervision requirements for APRN practitioners who specialize in pain management and included language to restrict the titles APRN practitioners use so patients aren’t confused about their credentials.

Evers previously vetoed APRN measures in 2022 and 2024, specifying in his veto messages that he didn’t sign them because of those issues.

“I wish it didn’t take us nearly a decade to do this,” said Rep. Lisa Subeck (D-Madison) in the Assembly floor session. “But It needed to and I’m glad that we’re getting it done now and I’m glad that we’re getting it done right.”

Under the proposal, the Wisconsin state nursing board would oversee the credentialing of advanced practice nurses. The credential would include certified nurse-midwives, certified registered nurse anesthetists, clinical nurse specialists and nurse practitioners.

“This is a really important bill,” said Sen. Kelda Roys (D-Madison) before the Senate passed the measure. “It is going to increase access to high-quality patient care for people around the state, but especially people in underserved communities.”