


Wisconsin’s Supreme Court on Wednesday struck down a 176-year-old state law that made it a felony to provide an abortion unless necessary to save the life of the pregnant woman.
The state’s supreme court, whose seven members are popularly elected, has a narrow liberal majority. This decision was made along ideological lines, with the four liberal justices in support of the ruling and the three conservative justices in dissent.
The majority opinion concludes that “comprehensive legislation enacted over the last 50 years” by the Wisconsin legislature “regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion.” Therefore, the court found “that the legislature impliedly repealed” Wisconsin’s near-total ban on abortion, so the pre-Civil War law “therefore does not ban abortion in the State of Wisconsin.”
Conservatives on the court argued in their dissent that the law banning abortion was not nullified by subsequent legislation, but rather the 1973 U.S. Supreme Court decision in Roe v. Wade. After that decision was overturned by Dobbs v. Jackson Women’s Health Organization, they argued that Wisconsin’s original law criminalizing abortion had been reactivated and must now enter into force absent its repeal.
A high-profile judicial election held earlier this year determined the ideological makeup of the Wisconsin Supreme Court going forward, but not in this decision. In that race, liberal candidate Susan Crawford defeated her conservative opponent, Brad Schimel, by over ten points. The liberal justice whom Crawford is set to replace, Ann Walsh Bradley, joined today’s majority opinion striking down the abortion ban.