Wisconsin judge rules 1849 law doesn’t outlaw abortion

A Wisconsin circuit court judge has ruled that an 1849 law that classifies the destruction of a fetus by someone other than the mother as a felony does not outlaw abortions, returning the state’s abortion access to its pre-Dobbs status.

Dane County Circuit Court Judge Diane Schlipper on Tuesday reaffirmed a ruling she issued earlier this year, finding that an 1800s-era law “does not apply to consensual abortions, but to feticide.”

After the Supreme Court overturned the landmark 1973 Roe v. Wade ruling in 2022, the question was raised over whether a Wisconsin state law passed in 1849 could go into effect. Roe had effectively invalidated the law when it was in effect.

Wisconsin Gov. Tony Evers and Josh Kaul, both Democrats, filed a lawsuit soon after Roe was overturned, challenging the law and asking state courts to clarify whether it was still in place.

The law stated “any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” It also creates a specific felony for killing a mother with the intention of destroying the life of the fetus.

This law explicitly did not apply in situations where an abortion “is necessary,” was performed by a physician and is done in a “licensed maternity hospital.”

Sheboygan County District Attorney Joel Urmanski interpreted the law as a ban on abortions from conception to birth, apart from exceptions to save the life of the mother.

Schlipper ruled in July that the law applies to individuals attacking a woman in the hopes of killing her unborn child but does not apply to consensual abortions. While this ruling did not end the suit, the decision gave providers such as Planned Parenthood enough confidence to resume performing abortions in September.

In a statement following Schlipper’s ruling, Kaul said: “Freedom wins. Equality wins. Women’s health wins.”

“This ruling is a momentous victory, and we are prepared to defend it—and reproductive freedom in Wisconsin,” he added.

The case now appears all but guaranteed to be taken up to the Wisconsin Supreme Court. In a statement shared with WISN 12 News, Urmanski said he was “obligated” to abide by the ruling but that he disagreed with the outcome and planned to appeal the decision.

The Wisconsin Supreme Court flipped to a liberal majority in August for the first time in 15 years, following the swearing in of Justice Janet Protasiewicz.