Wisconsin Supreme Court Debates Validity of 175-Year-Old Abortion Ban Amid Legal and Political Controversy

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The Wisconsin Supreme Court is currently grappling with the validity of the state's 175-year-old abortion ban, which has been the subject of significant legal and political debate. Here are the key arguments and legal precedents involved:

Arguments in Favor of the Ban

1. Historical Legislation: Conservatives argue that the 1849 law, which bans the termination of a pregnancy except to save a woman's life, is still valid and enforceable. They maintain that the law was intended to protect the life of the fetus and should continue to be upheld.
   

   

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2. State Sovereignty: Proponents of the ban argue that states have the right to regulate abortion as they see fit, especially after the U.S. Supreme Court overturned Roe v. Wade in 2022, which returned the authority to regulate abortion to individual states.
   

   

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3. Precedents in State Law: The 1849 law has been interpreted by some as applying to all stages of pregnancy, with no exceptions beyond medical necessity. This interpretation is supported by the amendments made to the law in 1858, which removed the "quickening" requirement and established penalties for assisting in an abortion.

Arguments Against the Ban

1. Roe v. Wade Precedent: Opponents of the ban argue that the Roe v. Wade decision in 1973 rendered the 1849 law unenforceable by establishing a federal right to abortion up to the point of fetal viability. This federal protection was in place until the Dobbs decision in 2022.
2. Dane County Circuit Court Ruling: In June 2023, Dane County Circuit Court Judge Diane Schlipper ruled that the 1849 law banned feticide (killing a fetus through an assault on the mother) but did not apply to consensual abortions. This interpretation allows for the resumption of abortion services in the state.
3. State Constitutional Protections: Planned Parenthood of Wisconsin and other groups are seeking a declaration from the Wisconsin Supreme Court that the state constitution protects the right to abortion. This argument is bolstered by the recent liberal majority on the state Supreme Court, which includes Justice Janet Protasiewicz, who campaigned on a platform supporting reproductive choice.

Legal Precedents

1. State v. Black (1994): This Wisconsin Supreme Court decision held that the 1849 law does not explicitly mention abortion and therefore does not criminalize consensual medical abortions. This precedent is central to the arguments made by those opposing the enforcement of the 1849 law.
   

   

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2. Dobbs v. Jackson Women's Health (2022): The U.S. Supreme Court's decision to overturn Roe v. Wade has led to a reevaluation of state laws regarding abortion. This decision has created uncertainty and legal challenges across various states, including Wisconsin.

Recent Developments

1. Wisconsin Supreme Court Consideration: The Wisconsin Supreme Court has decided to take up the challenge to the 1849 law, with arguments expected to be heard soon. This decision is significant as it will determine whether the law can be enforced to restrict abortion services in the state.
2. Legislative Attempts: The Republican-controlled Legislature has made several attempts to limit abortion access, including a proposed 14-week abortion ban that was subject to voter approval but did not pass the Senate. These legislative efforts continue to face vetoes from Democratic Governor Tony Evers.

In summary, the Wisconsin Supreme Court's consideration of the 1849 abortion ban involves complex legal arguments and historical precedents, with significant implications for abortion access in the state. The outcome of this case will likely hinge on the interpretation of the 1849 law in light of both state and federal legal developments.