19th century law fails: Wisconsin supreme court overturns 176-year old abortion ban; pro-choice advocates cheer

On Wednesday, the Wisconsin supreme court ruled to overturn the state’s 176-year-old abortion ban , determining that a more recent law, criminalising abortions only when the fetus is viable outside the womb, takes precedence.

In a closely split 4-3 ruling, the court, with its liberal majority, declared that the state’s 1849 abortion ban is not unenforceable. The court rejected arguments claiming the law had been revived after the US supreme court overturned Roe v Wade in 2022. That federal decision eliminated nationwide abortion protections and sparked legal uncertainty over whether Wisconsin’s near-total 19th-century ban had been reactivated.

The court sided with Democratic attorney general Josh Kaul, who argued that although the 1849 law was never formally repealed, it has effectively been nullified by more recent state laws and regulations. This decision marks the conclusion of a three-year legal battle over abortion rights in Wisconsin and reaffirms that current laws, focused on fetal viability, take precedence.

In 2022, soon after the US Supreme Court overturned Roe v Wade, eliminating the constitutional right to abortion, Kaul filed a lawsuit against a Republican district attorney who claimed that Wisconsin’s 1849 abortion ban had been reinstated and was legally enforceable.

Although abortions had resumed in Wisconsin after a lower court struck down the 19th-century ban, the Supreme Court’s ruling on Wednesday offers a greater sense of finality and legal clarity.

The Wisconsin Supreme Court retained its liberal majority following an April election in which Susan Crawford, who openly supported abortion rights, won the seat. The race, widely viewed as an early referendum on former President Donald Trump, became the most expensive judicial election in U.S. history.

The Wisconsin supreme court drew national attention earlier this year when billionaire Elon Musk, a former adviser to Donald Trump and now in conflict with the Republican president, funneled over $20 million through affiliated groups to support conservative candidate Brad Schimel in the high-stakes judicial race. Despite the massive spending, Schimel lost to Dane County Judge Susan Crawford, who secured the seat and preserved the court’s liberal majority.

The 1849 law banned abortion in nearly all cases, allowing it only when necessary to save the mother's life, with violators facing up to 15 years in prison. It became unenforceable in 1973 after the U.S. Supreme Court’s Roe v. Wade decision established a nationwide right to abortion.